Torture: Rarely, if ever, has such a guilty governmental conscience been so starkly illuminated in advance

CounterPunch: "America's Best Political Newsletter": "February 1, 2005 | A Legal Narrative | The Torture Memos | By JOSHUA L. DRATEL

While the proverbial road to hell is paved with good intentions, a host of internal government memos (collected in our book The Torture Papers) demonstrate that the path to the purgatory that is Guantanamo Bay, or Abu Ghraib, has been paved with decidedly bad intentions. The policies that resulted in rampant abuse of detainees first in Afghanistan, then at Guantanamo Bay, and later in Iraq, were product of three pernicious purposes designed to facilitate the unilateral and unfettered detention, interrogation, abuse, judgment, and punishment of prisoners:

(1) the desire to place the detainees beyond the reach of any court or law;

(2) the desire to abrogate the Geneva Convention with respect to the treatment of persons seized in the context of armed hostilities; and

(3) the desire to absolve those implementing the policies of any liability for war crimes under U.S. and international law.

Indeed, any claim of good faith--that those who formulated the policies were merely misguided in their pursuit of security in the face of what is certainly a genuine terrorist threat--is belied by the policy makers, more than tacit acknowledgment of their unlawful purpose. Otherwise, why the need to find a location--Guantanamo Bay--purportedly outside the jurisdiction of the U.S. (or any other) courts? Why the need to ensure those participating that they could proceed free of concern that they could face prosecution for war crimes as a result of their adherence to the policy? Rarely, if ever, has such a guilty governmental conscience been so starkly illuminated in advance.

That, of course, begs the question: what was it that these officials, lawyers and lay persons, feared from the federal courts? An independent judiciary? A legitimate, legislated, established system of justice designed to promote fairness and accuracy? The Uniform Code of Military Justice, which governs courts-martial and authorizes military commissions? The message that these memoranda convey in response is unmistakable: these policy makers do not like our system of justice, with its checks and balances, and rights and limits, that they have been sworn to uphold. That antipathy for and distrust of our civilian and military justice systems is positively un-American.