Torture, Emperor and Forgetfulness

Via Mark Kleiman, I came upon the story of the torture memo in the Wall Street Journal.

Bush administration lawyers contended last year that the president wasn’t bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn’t be prosecuted by the Justice Department.

The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in late 2002 that with conventional methods they weren’t getting enough information from prisoners.

[…]The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful. But at its core is an exceptional argument that because nothing is more important than “obtaining intelligence vital to the protection of untold thousands of American citizens,” normal strictures on torture might not apply.

This hypothetical has been invoked lots of times by supporters of torture. However, it assumes perfect information: We know an attack is coming, but not when, where, what; we have a guy in custody who we know that he definitely knows about the attack; and he’ll tell us about the attack when tortured. In the real world, we never have that information. The guy we have in custody might be innocent or our intelligence about a terrorist attack might be wrong, etc.

The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued. Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the “necessity” of using such methods to extract information to head off an attack, or “superior orders,” sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no “moral choice was in fact possible.”

Hey, it’s not me comparing these guys to the Nazis, they are doing that themselves.

[…]Foremost, the lawyers rely on the “commander-in-chief authority,” concluding that “without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority” to wage war. Moreover, “any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president,” the lawyers advised.

Likewise, the lawyers found that “constitutional principles” make it impossible to “punish officials for aiding the president in exercising his exclusive constitutional authorities” and neither Congress nor the courts could “require or implement the prosecution of such an individual.”

What better proof that the United States is turning from a republic into an empire than that the President wants to be emperor who can flout all laws.

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a “presidential directive or other writing” that could serve as evidence, since authority to set aside the laws is “inherent in the president.”

[…]For members of the military, the report suggested that officials could escape torture convictions by arguing that they were following superior orders, since such orders “may be inferred to be lawful” and are “disobeyed at the peril of the subordinate.” Examining the “superior orders” defense at the Nuremberg trials of Nazi war criminals, the Vietnam War prosecution of U.S. Army Lt. William Calley for the My Lai massacre and the current U.N. war-crimes tribunals for Rwanda and the former Yugoslavia, the report concluded it could be asserted by “U.S. armed forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.”

That Nazi thang again!

A redacted version of the torture memo is online now (Newsweek also has a version of the memo with different missing pages.) It’s a long document and probably more useful for the lawyers, but I’ll note that it says that the Justice Department has ruled war crimes permissible against the Taliban and Al-Qaeda (see footnote 14 on page 17.)

Talking about lawyers, what better lawyer blogger to read on this topic than Phil Carter of Intel Dump. You should read his post (or his article in Slate) in full but I’ll excerpt only the punchline:

It is, quite literally, a cookbook approach for illegal government conduct. This memorandum lays out the substantive law on torture and how to avoid it. It then goes on to discuss the procedural mechanisms with which torture is normally prosecuted, and techniques for avoiding those traps.

Unqualified Offerings argues that this memo shows systemic corruption in the administration and that the story is much bigger than torture now.

Political Animal provides a timeline of all the torture memos we have heard about so far. It seems the discussion on torture started almost immediately after the September 11, 2001 terrorist attacks and has gotten worse over time.

Balkinization has a fascinating post about the history of claims that the US President is above the law in some respect. He is also ashamed to be a lawyer seeing that the torture memo is a lawyerly work.

Discourse.net mentions that the memo’s position on Guantanamo is opposite that of the government in the Supreme Court case about the detainees there. The torture memo argues that Guantanamo is inside the US for jurisdictional purposes and so the overseas torture act does not apply there.

Beautiful Horizons has a good Q&A about the topic.

According to the New York Times, only the State department lawyer dissented from the torture policy of this memo.

President Bush was asked about the memo.

Asked whether he has seen the memos, Bush replied, “I can’t remember if I’ve seen the memo or not.”

You might also want to read about the military police soldier Specialist Baker who was severely beaten up in Guantanamo in a training exercise where he played the role of a prisoner. According to Baker, he was discharged because of the injuries he sustained from that beating. The army denied that at first, but now admits that those injuries were part of the reason.

All the reports about torture must also lend credence to the stories of the four British Guantanamo detainees who were released in March. At the time, I was skeptical about their allegations of torture and abuse

Brad Delong reports on a talk by journalist Seymour Hersh, who broke the Abu Ghraib torture story, at the University of Chicago in which Hersh says that there is much more to come about torture and disappearings. Channeling Teresa Nielsen Hayden, I have to say I deeply resent the way this administration makes me feel like a nutbar conspiracy theorist.