Monday, February 22, 2010

Bush Administration Compared to al Qaeda

The recently released report (PDF) of the Department of Justice's Office of Professional Responsibility is a 289-page account of the actions of the Bush administration in their conduct of the war on terror. I have been a consistent and vocal critic of the use of torture (and have also been against policies by the Obama administration to retain some of Bush's options (such as indefinite detention without access to a lawyer). This memo (which, in all honesty, I haven't read in full but intend to do so as time permits) puts a lot of the truth on the table.

Particularly, the report overturns earlier findings that Bush legal counsel (and current UC Berkeley law professor) John Yoo committed "intentional professional misconduct" when he advised Bush that torture was legal. In fact, the OPR report only goes so far as to say that Yoo showed "poor judgement" but did not violate ethical standards.

So basically, Yoo (and fellow torture justifier Jay Bybee) acted in bad faith, but their violations of the law were not unambiguous. That would place them in a category of people who followed orders of their superiors, even though they know that what was being asked of them was wrong. Still Yoo is clearly on record as believing that the president can do pretty much anything in defense of the country, including breaking any law, such as crushing the testicles of a child of a detainee in front of the detainee to get him to talk, or wiping out an entire village of innocent people to get at one suspected terrorist.

The reaction on the blogosphere has been varied and interesting so far. Andrew Sullivan is compiling a bunch of writers on his blog throughout the day. The most provocative piece I've read so far is this one from Adam Serwer, subbing for Ta-Nehisi Coates on his blog. Serwer compares what Bush/Cheney did to the actions taken by Osama bin Laden and Ayman al-Zawahiri in finding Koranic justification for killing anyone, including Muslims, in their campaign of terror:

The theological justification for al Qaeda's wholesale slaughter of civilians was provided by Sayyid Imam al-Sharif, also known as Dr. Fadl, one of the founding fathers of al Qaeda. Because the murder of innocents is forbidden in Islam and the murder of Muslims in particular, Ayman al-Zawahiri and Osama bin Laden required some sort of theological framework for justifying terrorism. This was provided by al-Sharif, who essentially argued in his book, "The Compendium of the Pursuit of Divine Knowledge," that apostates could be murdered, and that approach, takfir (which has come to be known as takfirism) allowed al Qaeda to, for all intents and purposes, kill anyone they wanted without violating the laws of Islam by declaring them to be apostates. In other words, Dr. Fadl helped provided a theological justification for something that everyone involved knew was wrong.

The legal memos justifying torture aren't very different in terms of reasoning--it's clear that John Yoo and his cohorts in the Office of Legal Counsel saw their job not as binding the president to the rule of law, but to declare legal any tactic that the executive branch believed necessary to fight terrorism.

Eerie parallel, ain't it? Bin Laden needs to have Muslims declared infidels, apostates, in order to justify killing them, so he finds an imam who can provide that justification. Bush/Cheney want to be unbound by any little quaint law that prevents them from torturing people to get information, so they ask a bunch of lawyers -- who all happen to believe that the president is not bound by the law, anyway -- to write up some legal framework that the president and vice president can later use to say, "See, it was all legal and stuff. We had a bunch of really great lawyers show us that we were not doing anything illegal."

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