Saturday, February 28, 2009

Invoked the "What Geneva Conventions?" Defense Lately?

Last night I finally got around to watching "Torturing Democracy," a documentary that appeared recently, albeit slowly and controversially on PBS stations after the election.

It was shocking and I highly recommend it, especially in light of yesterday's news that the Court of Appeals for the Ninth Circuit has rejected the Bush and now Obama Administration's position that the case could not go forward because of the threat of "State Secrets" being released. Glenn Greenwald and Marcy Wheeler both describe the background of that case and Monday should be an interesting day as Judge Vaughn Walker, assuming that an appeal is not filed by the Obama administration with the Supreme Court, will likely rule that the wiretap of communications between Al-Haramain (a now dissolved Islamic fund raising organization) and its Oregon lawyers was in clear violation of the law. As Marcy notes:

Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal. I will, quite literally, be holding my breath on Monday, but Walker may well beat any games from Obama.

I encourage everyone to watch the documentary. I plan on watching it again since it was late when I watched it and, with Sam Adams and a bowl of popcorn beside me, I dozed off a few times as it was a long week.

But there was one line from the narrator that stood out. In a documentary that features interviews with many criminal defense lawyers who are standing up against the outrageous policies practiced at Gitmo and elsewhere, wouldn't you think a little respect for criminal defense attorneys would be in order?

While I'm never truly surprised when people criticize criminal defense attorneys, I didn't expect it in the middle of a PBS doc about how the Bush administration worked the "dark side" and ultimately ended up not only ignoring but blatantly violating the Geneva Conventions, international law and federal statutes that criminalize torture.

Here's the exchange that woke me up:

NARRATOR: In Washington, Secretary of State Colin Powell – the most experienced military man among the President’s top advisers – stepped up his defense of Geneva’s half century of war-fighting rules.

RICHARD ARMITAGE: We were trying to wrestle with how to fight both an enemy and
an idea, and I think came up with a wrongheaded solution - opting out of Geneva. We,
after all, want our soldiers, should they be unfortunate enough to be captured, to be
treated in a proper way. And yet, we weren't willing to afford that to others. That seems a little counter-intuitive to me. It did at the time, and it does now.

NARRATOR: Before the Secretary of State could make his case to the President
personally, he was undermined by the Vice President. In a blunt memo written by
Cheney’s counsel, David Addington – but delivered by White House Counsel Alberto
Gonzales – Bush was advised that the war on terror: “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners”.

NARRATOR: And in an argument that could have been written by a criminal defense
lawyer, the President was told that opting out of the Geneva Conventions:
“substantially reduces the threat of domestic criminal prosecution under the War
Crimes Act

RICHARD ARMITAGE: If you were twisting yourselves into knots because you're
fearful that you may be avoiding some war crimes, then you're probably tripping too
closely to the edge.

Let's break down that sequence:
1. Two former military men, Powell and Armitage, fought against violating Geneva.
2. Cheney and Addington, via Gonzo, undercut these former military men, telling W that Geneva is not only "quaint" but inapplicable.
3. Bush is further told that claiming Geneva does not apply "reduces the threat" that anyone could be prosecuted for war crimes for treatment of detainees.
4. This is the sort of argument that "criminal defense lawyers make."

Perhaps the point the writers are trying to make is that this laughable justification is the role criminal defense lawyers often find themselves in, trying to convince a fact finder that black is white, but it seemed an odd place to imply that "criminal defense lawyers" are similar to Addington, Cheney and former judge and Attorney General Alberto Gonzales.

The documentary goes on to describe how important John Yoo's memos were to these justifications as they allowed the other players to operate with a stamp of approval granted by a prosecutor, as Yoo was a Deputy Attorney General at the time.

It's possible that the authors were implying that the parties' criminal defense lawyers might later be in a terrible position in trying to justify these actions and might be forced to resort to arguing that the President's decision to "opt out" of Geneva meant that war crimes prosecutions were inappropriate against those who carried out the President's orders.

But, considering that they were describing Cheney, Addington, Yoo and Gonzales' laughable position that the President could simply ignore the Geneva Conventions and that doing so could also protect Americans from possible prosecutions at the Hague, it seemed a ridiculous time to imply that "criminal defense lawyers" are the typical proponents of these positions.

Had any luck in court lately advocating that your clients can't be prosecuted because the Unitary Executive retains that Constitutional Authority to render international treaties void?

What, that isn't what we do?

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