New Paradigm

From American Gulag

"This will be a different kind of conflict against a different kind of enemy," President George Bush, September 15, 2001

The Bush administration declarations of war came with stipulations. “This is a conflict without battlefields or beachheads, a conflict with opponents who believe they are invisible,” Bush said in September 2001. The new kind of conflict was accompanied by a new paradigm of legal constraints on acceptable wartime behavior.

In the immediate aftermath of 9/11, it was Vice President Cheney who addressed what kind of tactics a “different kind of conflict” might require.

If we are going to be successful the Vice-President warned, “we also have to work, though, sort of the dark side, if you will.”

Cheney went on, “we've got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies.”

[edit] New Legal Parameters

In the months following 9/11, a series of internal memos circulated among the Justice Department and the Office of Legal Counsel redefined American commitments to the Geneva Conventions provisions for prisoners of war in the global war on terror. A January 2002 memo by Alberto Gonzales, who was then the White House counsel, said the new exigencies of a new type of war rendered the “strict limitations on questioning of enemy prisoners,” imposed by the Geneva Conventions, obsolete. Gonzales, and other legal advisors to the President argued that the new age ushered into existence by the terrorist attacks on the World Trade Center and the Pentagon required a “new paradigm” loosening legal constraints on wartime executive powers.

“We have had laws that were written for a totally different kind of war,” argued John Yoo, a former Justice Department official, who is said to be the key architect of the Bush administration’s legal definition of torture.

“We are now fighting a war, which people had not anticipated when they wrote these previous laws. [We are] fighting an organization that hides in civilian populations and launches surprise attacks on us. So I think what the presidency has been doing is interpreting laws to adapt them to face this future.”

Under the Geneva Conventions, prisoners of war enjoy protection from torture, “degrading treatment” and “outrages on personal dignity.” But administration lawyers argued that people detained in the war on terror do not enjoy those protections because they are not regular forces and do not meet the conditions for prisoner of war status. As unlawful combatants, Bush announced in February 2002, they would not be covered by the Geneva conventions but whenever possible they would be treated in a manner “consistent with the principles of Geneva.”

By January 2002, fighters the government deemed ‘unlawful combatants’ began to arrive in the Guantánamo Bay detention camp in Cuba. More memos from the OLC would provide a rationale for using torture to extract information from these alleged Al-Qaeda operatives, and also reshape the legal definition of torture.

According to the 1996 War Crimes Act torture is an “act committed by a person acting under the color of the law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”

‘But what does ‘severe pain’ really mean?’ asked the President’s lawyers. In an August 2002 memo, the OLC’s Jay Bybee looked for other statutory uses for the term. He found them in laws “defining an emergency medical condition and for the purpose of providing health benefits.” ‘Severe pain’ amounting to torture, he concluded, is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

These memos were secret; but public allegations of detainee abuse in Guantánamo would come from a source as reputable as the Red Cross in late November 2004.