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Bush Only Confessed to a Crime, if You Don’t Actually Read the Law. Or a Calendar.

Jimmie | September 10, 2006 | Comments (0)

Mark Klieman must think that we’re all about as smart as a head of cauliflower. I say that based on his post wherein he contends that the President openly admitted to breaking the law.

He tries to get there with two separate arguments.

His first allegation is that the President violated US law in 18 U.S.C. 2340 that defines torture as:

…an act committed by a person acting under the color of 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 note the section I emphasized. The President has strongly contended that the interrogation techniques used on the detainees has been lawful. That contention is, so far as I can tell using my layman’s knowledge of the law, exactly right. Here is his statement on the matter as quoted by Klieman’s co-author, James Wimberley.

We knew that Zubaydah had more information… And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. .. But I can say the procedures were tough, and they were safe, and lawful, and necessary.

In other words, the interrogation techniques in question were approved by the elected official whose job it is to approve them and thoroughly examined and found legal by the government agency which job it is to review and approve them. They then became the legal sanctions that could be levied on detainees.

I’m not quite sure how you can fairly argue that he broke the law since the techniques that have some all atwitter exactly met the parenthetical exception of 18 U.S.C. 2340. I’m willing to bet that he knows that. I’m more willing to bet that the Justice Department has a pretty good handle on the law as well and knew all about that exception in the law. They may be baby-eating torture-mongers and all that, but they know the law really, really well.

Klieman’s second accusation follows an even sillier and more obtuse “logic”. Here’s how it works: President Bush admitted to doing things that allegedly violate Common Article 3 of the Geneva Conventions (the “humiliating and degrading treatment” bit), details of which were reported by ABC News in November, 2005. Since, as Klieman notes, the Supreme Court held in Hamdan that terrorists held as “detainees” are covered under CA3, then it it follows that the interrogation techniques used on the detainees was illegal.

Sounds pretty solid, right? The SCOTUS says that detainees are subject to CA3 protections. George Bush admitted to violating those protections. Slam dunk, says Mark Klieman.

Except that the Hamdan decision came down in June, 2006 – seven months after the acts outlined in the ABC News article. Those acts may be a crime now (and that’s no certainty, since all Hamdan did was to put the onus on the government to clearly define what would and would not constitute an illegal interrogation technique), but they were not in 2005.

As most of us know, you can’t commit a crime that wasn’t a crime as the time you committed the act. Most of us, that is, except for Klieman and a hang-wringing Matthew Yglesias, who I had honestly thought would be smarter than that. The principle, called nulla poena sine lege whichis closely related to the principle that prohibits ex post facto laws and is not only a bedrock principle of the US legal system, but also of “international criminal laws”.

Now, you may well agree with Klieman, Yglesias, and Wimberley that the techniques were not appropriate and were too severe, but you can not reasonably argue that they were illegal. Doing that requires a certain twistiness of reasoning that most rational folks can not even attempt lest their frontal lobes end up leaking out through their noses.

Then again, I suspect that the normal world on which you and I live is far from the world that those who will come up with any half-baked reason to accuse the President of crimes inhabit. Klieman calls his site “The Reality-Based Community”. I suppose that’s easy when you create your own special reality.