Flouting the Rule of Law: Prof. Ifill Examines a Troubling Pattern

Top officials of the George W. Bush administration, including Bush himself, have loudly, and often, proclaimed their approval of interrogation methods of military detainees that under international and domestic law amount to torture, and their actions undermine the nation's supposed commitment to the rule of law, writes University of Maryland law school professor Sherrilyn Ifill.

In an article for The Root, Ifill notes that during recent promotion of his book, Decision Points, Bush says he had no problem approving the waterboarding of Khalid Sheik Mohammed, accused of plotting the Sept. 11 attacks. Bush writes that when asked by the CIA whether it could use waterboarding in its interrogations of Mohammed, he replied "Damn right."

President Obama, Attorney General Eric Holder and international legal experts, The Washington Post reports, have all condemned waterboarding as torture. But, Ifill writes, Bush and many of other officials from his administration have continued to proclaim their support of waterboarding, and attack the Obama administration on its national security policies.

But more troubling than the political consequences surrounding the matter is that too many Americans apparently don't see a problem. Ifill notes that "no one in the upper command structure or cabinet of the Bush administration has been criminally or civilly punished ...," Ifill writes. "This is what impunity looks like," she adds.

Ifill continues:

The line on torture, on detainee treatment, on disclosures to Congress and the public, has never been reset. As Bush and Yoo [John Yoo, former attorney in the Bush administration, who wrote memoranda, which have been widely criticized for offering shoddy legal analysis, supporting the use of torture in interrogations] chat with Oprah and appear on talk shows touting their books, and waterboarding becomes the stuff of late-night jokes, Americans may no longer even know or care what constitutes illegal conduct during war.

Jon Stewart condemns those who call Bush a war criminal as equivalent to those who compare Obama to Hitler, without recognizing the critical difference between the two. Responsible and experienced lawyers believe - based on fact and standards set out in the Geneva Conventions, the Convention Against Torture and our own domestic anti-torture statute - that former President Bush may in fact be a war criminal. Likening President Obama to Hitler, on the other hand, is ugly, irresponsible name-calling.

Ifill also notes an opinion from the U.S. Court of Appeals for the Ninth Circuit, Al-Kidd v. Ashcroft, which allowed a legal action accusing former Attorney General John Ashcroft of implementing a policy of mass incarceration after the Sept. 11 attacks of American Muslims that resulted in an illegal arrest and detention to proceed. "There's little disagreement among court watchers," Ifill writes, "that the Supreme Court took this case for the same reason it hears most of the other petitions from the 9th Circuit: to reverse the decisions of that more moderate appeals court. Once again, illegal conduct has taken place, and yet those who gave the order may avoid responsibility."

[image via Marion Doss]