I recently sent the following email to Dean Thomas Mengler of the University of St. Thomas School of Law. The local Tackling Torture at the Top group has been protesting there for several years. Robert Delahunty, while in the Office of Legal Counsel, co-wrote several memos with John Yoo, some of which still remain secret. Most notable of those released to the public is a Jan. 9, 2002, memo which said the Geneva Conventions did not apply to al Qaeda and Taliban detainees. That memo never mentioned the Convention Against Torture or the Youngstown Steel case, a seminal Supreme Court decision on Presidential powers. The Supreme Court rejected part of the Yoo-Delahunty analysis in its Hamdan decision. Mr. Delahunty is now a Professor of Law at the University of St. Thomas School of Law, where he has led prayer services, and whose Dean has defended him by pointing out that Delahunty was not involved in writing the more infamous "torture memos."
Date: Wed, 30 Jun 2010 03:10:49 +0000
Dear Dean Mengler:
I had an interesting encounter today, and I am seeking your advice and possible assistance. I got an email from a law school classmate of mine. His name was Robert Alihamdan — we called him "Bob" in law school — although for reasons I’ll explain, he is using an assumed name now.
Bob is an Iraqi citizen. His email led to a telephone exchange between us, which I shall try to summarize here. He told me that earlier in his career he was a legal advisor to Saddam Hussein, then the president of Iraq. Bob told me that prior to the most recent U.S.-Iraqi war, along with a colleague, he was asked to give legal advice as to whether the Geneva Conventions would be applicable to captured U.S. soldiers. He said that with considerable involvement of the Iraqi vice president’s staff, he completed a memo before the war had begun.
In that memo, he advised that U.S. soldiers would not legally fall under the protections of the Geneva Conventions. It was based on all sorts of abstruse provisions of Iraqi law, none of which are familiar to me. Nonetheless, he argued that the United States was a rogue/failed state among the community of nations. He told me the memo stated this was based on the United States not recognizing accepted principles of international boundaries. Specifics I remember him mentioning were 700+ U.S. military bases in 100+ countries around the world; U.S. invasion of dozens of countries without U.N. Security Council approval and contrary to Article 51 of the U.N. Charter; the fact that 16% of U.S. land area is not contiguous to the rest of the land [the relevance of that one I barely understood]; and our country’s multiple uses of nuclear weapons.
Wow! I was stunned. Knowing nothing about Iraqi law, I decided to confront him on an obvious factual error. I told him the United States has used nuclear weapons just twice — at Hiroshima and Nagasaki — and those were even before the latest revisions of the Geneva Conventions in 1949. His response was something like the following. He said, "If someone in your country holds up a convenience store with a handgun, don’t you call that armed robbery? And don’t you call it that whether or not the perpetrator actually shoots the gun? And don’t you call it ‘armed robbery’ because you say the person ‘used’ a gun in the incident? Hasn’t the United States, just like the armed robber, threatened the use of nuclear weapons on numerous occasions? Isn’t saying, ‘We take no option off the table’ precisely that kind of threat?" I felt like an unwilling witness being questioned by a bulldog lawyer.
Well, Bob went on to explain his predicament. Subsequent to his legal memo, his co-author and another colleague wrote a separate legal memo on what would constitute torture, according to Iraqi and international law. The writers were fully aware that Iraq, without requesting any legal advice, had tortured people in the past. It was their impression the memo was desired to provide some protection for Iraqi soldiers and officials in some possible future international tribunal. These later memos, which have since become notorious in Iraq, defined permissible conduct as anything short of beheadings. (They are often referred to as the "beheadings memos.") It turns out that after Bob’s memo but before the "beheadings memos," some captured U.S. military personnel may have been tortured. This may have been done in reliance on Bob’s memo. In addition, some ultra-high court in Iraq — although not unanimously — rejected his memo’s reasoning, at least with respect to parts of the Geneva Conventions.
[As an aside, I think this may have been a religious court. I'm not exactly sure how captured soldiers get access to Iraqi courts, anyhow. I'm sure they don't have rights like our detainees get, such as the right to file habeas petitions in our courts. This was probably an advisory opinion of some sort, where no case or controversy provision like in our Constitution was necessary.]
Bob’s memo has been roundly criticized in Iraqi legal circles. Primary among the criticisms were that he totally failed to mention the Convention Against Torture, to which Iraq is a signatory, and his failure to mention a seminal case in Iraqi law that had something to do with the Iraqi president having seized some oil wells to help prosecute a war some 50 years earlier. He told me the memo’s co-author has argued that was a labor dispute, not an issue of a wartime president’s powers, and has been excoriated by legal scholars for taking that position. I am not sure if those were religious legal scholars or secular legal scholars.
When the new government was installed, Bob took an assumed name and obtained a teaching position at an Islamic-affiliated law school. Now some students in other departments at his school are beginning to raise questions about his involvement in the Hussein regime. The Dean of his law school has told him he will defend him, if necessary, by pointing out that Bob did not write the "beheading memos," but Bob feels the Dean might soon feel the pressure and let him go. The government also might feel the pressure and bring charges, even though the new president supports Bob’s writings in favor of expansive presidential power, especially in wartime. Bob said he is aware that lawyers were brought to trial at Nuremberg merely for giving legal advice.
So, to make a long story short, Bob has decided the wiser course would be to seek asylum now in the United States. He feels a sponsor and job offer would strengthen that request. I know little about immigration law, so I don’t know if he is correct about that or not. He asked me if I knew of any religiously-affiliated law schools that might be able to help him. He specifically said "Christian-affiliated" schools, as he thought that would give him even more cover.
I suggested Liberty University Law School or Regent University Law School in Virginia, but he said he was looking for some place less notorious or less likely to attract media people. Apparently, Monica Goodling had made the news even in Iraq. Bob said he would prefer a school not on either coast or in major population centers as well. [My feeling is that someone seeking asylum shouldn't be so picky!]
And then it occurred to me that we have such a school right here in the Twin Cities. That is why I am writing you. Robert Alihamdan is a good, decent man. He is religiously devout and leads a Friday noon-hour prayer service at his present school. He has published widely on a host of legal issues — but under an assumed name, so I guess that sort of leaves you in a pickle. Despite his misuse of the word "use" that I noted above — it may have been an anomaly — his English is excellent, and I am sure he would have no difficulty communicating with students.
Any assistance or referrals that you could provide would be much appreciated. Mr. Alihamdan feels that his exposure is imminent and that he is much better off seeking asylum pre-emptively.
Thank you for your support in advance.
A couple days later I received this wonderfully humorous response from Dean Mengler.
Date: Fri, 2 Jul 2010 07:54:55 -0500
Subject: RE: An asylum-related request
Dear Mr. Turchick:
Thank you for your note and your request for any suggestions about immigration lawyers in this area who might be able to assist your friend. I will check with lawyers in town I know and get back to you if I or they have any suggestions.
I would encourage you to contact the MSBA or the Hennepin or Ramsey County Bar Associations. They may have lists of immigration attorneys who might be willing to take your friend’s case.
The only previous exchange I had had with the Dean was a heated telephone conversation. If Dean Mengler and I can laugh together — even if we may not be laughing at the same thing — maybe there is hope for us after all, both as Americans and as inhabitants of planet Earth.