The Memo

Excerpts from a Department of Defense memo on the use of torture, from a Wall Street Journal article today:

"In order to respect the president's inherent constitutional authority to manage a military campaign ... (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority..."

After defining torture and other prohibited acts, the memo presents "legal doctrines ... that could render specific conduct, otherwise criminal, not unlawful." 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."

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."

The full text is easily available via a Google News search; I feel funny violating newspaper copyright, though.

There are two enormous problems with this memo.

The first is that the arguments themselves are frightening. I also think it's fair to say, even as a rank amateur, that many of them are well outside the mainstream of constitutional law--let alone international law. The idea that not only does the President have unlimited and indefinite authority to declare someone an unlawful combatant if Congress doesn't say otherwise, and to torture them up to and including death, but it is unconstitutional for Congress to regulate it, is beyond the pale.

(And let's not forget, we know from the Padilla case that administration believes the inherent commander in chief power applies fully to U.S. citizens and within the United States.)

They also seem to confuse the possibility that a court wouldn't enforce the torture convention or the laws implementing it against the President or those following his orders--a real enough possibility--with the claim that it would be perfectly legal for the President to order captives tortured. It's not the same thing. The fact that you may not be caught or punished, doesn't mean you aren't breaking the law.

You can say that this is just a hypothetical question, that we have no evidence that the government adopted this policy, that maybe this team was playing devil's advocate. But these things are classified--this memo itself was classified. You cannot get them through the Freedom of Information Act. The executive branch has almost complete authority to classify documents*. This administration has proven willing to declassify documents for political reasons, and there is every reason to believe they are willing to keep politically damaging things classified.

And torture has actually happened. We know that now. It happened at Abu Ghraib, it has happened to Maher Arar and others through "extraordinary rendition", it apparently happened at Bagram and other detention centers in Iraq, it may have happened in Guantanamo.

Which is the second problem with the memo: it's yet another piece of circumstantial evidence that this administration at least condones torture.

*does anyone know if it's subject to Congressional subpoena power? I don't think it is, but I sure hope so.

Comments

[Hal]

Funny how we got through two world wars, several smaller ones and a host of other low intensity conflicts without feeling the need to sanction torture.

How times have changed. . .

[JimPortlandOR]

Any congressional committee of jurisdiction can request that a document be declassified and supplied to congress.

If it isn't supplied, the committee can request it be supplied under confidentiality.

If it isn't supplied under confidentiality the committee can ask the Intelligence Committee to request the document, under non-disclosure. That request can't really be denied, but if it is, the commmittee can vote to use congressional subpoena to obtain it.

If the Exec. wishes to not obey a subpoena they must ask a court to void it.

If a court order the release, and that order is upheld on review, and the Exec fails to produce the document, that is grounds for impeachment.

Normally, the Exec knows they can't win this game, but they often drag it out.

Once the action starts, a document is often released in redacted (edited) form, or it is intentionally or unintentionally leaked to the media, making the classification moot.

Freedom of Information requests from any group do not have to satisfied if a document is classified.

What if the Exec. classifies almost everything of interest to hide information? Then you have the Bush administration, don't you.

[Jesurgislac]

You can say that this is just a hypothetical question, that we have no evidence that the government adopted this policy, that maybe this team was playing devil's advocate.

Well, maybe. But it surely is a nasty piece of circumstancial evidence, given the evidence of torture in Bagram Airbase and Abu Ghraib, and the reports of torture from former inmates of Guantanamo Bay, and from other US military detention centers in Iraq by the Red Cross and Amnesty International.

It's not the same thing. The fact that you may not be caught or punished, doesn't mean you aren't breaking the law.

I do wish I could believe that the people who were ultimately responsible for Abu Ghraib and Bagram Airbase and Guantanamo Bay would be prosecuted, rather than just the grunts who carried out the orders. Though I do think prosecution for those who carried out the orders matters, too: a clear sign to all that illegal orders must not be obeyed.

[von]

The first is that the arguments themselves are frightening. I also think it's fair to say, even as a rank amateur, that many of them are well outside the mainstream of constitutional law--let alone international law. The idea that not only does the President have unlimited and indefinite authority to declare someone an unlawful combatant if Congress doesn't say otherwise, and to torture them up to and including death, but it is unconstitutional for Congress to regulate it, is beyond the pale.

I think it fair to say that whoever drafted this memo should be relieved of duty for rank incompetence. It's utterly beyond of the pale of what I remember from law school.

I'd be careful, though, about imputing one draft memorandum to the entire Bush Administration.

[Slartibartfast]

It's odd to find myself once again mostly in agreement with Jesurgislac. If I could bottle the feeling and sell it, it'd certainly be outlawed within days.

[Jesurgislac]

Slarti, I take it that there some things so outrageous that even committed Republicans can't bring themselves to defend them... ;-)

[Doh]

Von,

What's your evidence that this is a draft memo? Nothing I have seen described it that way (at most I saw one Pentagon source refer to it as an "interim analysis" suggesting that it was one in a series of memos, but not that it was in draft form).

More importantly, the memo was not the work of a single low level flunky-- it was the work of a high level team of lawyers, intended for the use of cabinet-level and White House officials. If I can't attribute it to the Bush Administration, who can I attribute it to?

Furthermore, the memo is not isolated data point. It is one of a series of memos we have learned about over the last several months-- including one by the WH counsel to the President advising him on how to avoid prosecution for war crimes. Every piece of evidence that has -- against all of their efforts-- made it into the light of day suggests that this memo is fully consistent with how the Bush Administration views their relationship to the law (i.e., it is something to be gotten around, rather than respected).

I forget who said the Bushies would tell the truth if it was ever easier than lying, but that seems to be more or less their attitude to the rule of law as well.

[von]

What's your evidence that this is a draft memo?

I'm referring to the 100-page memorandum obtained by the WSJ, which is cited in Katherine's article; there's a different, 50-page "final" DOJ memo referenced in this morning's WaPo, which may be why there appears to be a discrepency.

If I can't attribute it to the Bush Administration, who can I attribute it to?

Lawyers provide analysis and advice; they don't make the final decision. Just because a lawyer offers a potential policy doesn't mean that the policy is going to be (much less has been) adopted. Lawyers are agents; they are (almost) never principals.

Also, speaking from personal experience, I've drafted various materials and memorandums that reflect legal positions that my client didn't intend to take -- the purpose was to discern the limits of the law, either to ensure that we stayed well within them. (I've never drafted a memorandum that advocates violating the law, however, which is the essentialy problem with the DOJ/DOD memos, as reported.*)

von

*Reporters frequently miss important legal nuances, so I'm withholding judgment.

[von]

Apologies for the typos, above.

[Edward]

I went a few round with M. Scott Eiland on Tacitus about this yesterday (and it went rather well until it dissolved into partisan bickering), but my sense of it now is that the Constitution does seem to allow for the president to pretty much make up law and/or break it as he goes along, with little more than impeachment to stop him.

Marshall had a good bit about Thomas Jefferson's take on this yesterday too. In a nutshell:

The clearest instance of this would be a case where the president faced a choice between letting the Republic be destroyed or violating one of its laws.

But that wasn't the end of his point. Having taken such a step, it would then be the obligation of the president to throw himself on the mercy of the public, letting them know the full scope of the facts and circumstances he had faced and leave it to them -- or rather their representatives or the courts -- to impeach him or indict those who had taken it upon themselves to act outside the law.

[JKC]

I'm no lawyer, so I'll offer no legal analyses (i.e. guesses). But let me make an observation: every Republican Administration since Nixon has gotten itself into trouble when it starts believing it's above the law.

I know Bush was only a C student, but you'd think he'd remember that much...

[Slartibartfast]

...every Republican Administration since Nixon has gotten itself into trouble when it starts believing it's above the law.

I'll agree, with the following edits:

Every administration has gotten itself into trouble when it starts believing it's above the law.

[Edward]

I'll second Slarti's edit.

[Katherine]

"but my sense of it now is that the Constitution does seem to allow for the president to pretty much make up law and/or break it as he goes along, with little more than impeachment to stop him."

Edward--your discussion yesterday, if I'm thinking about the right one, was about the pardon power, which is specifically enumerated and the Constitution and very different from what this memo is suggesting.

The president could pardon someone convicted of torture, maybe including himself--that's probably what the Supreme Court would call a "political question". This doesn't mean he is free to ignore all laws whenever it suits him. There are rules about pardons; they've got to be public, for one thing. That's not what the memo is talking about.

[Edward]

Katherine, I think it was at this point that M Scott and I stopped communicating, so I'm glad you've pointed that out.

I guess I took away the idea that the president could essentially direct someone to break the law and tell them that if they get caught he'd pardon them and that this is all completely constitutional.

M Scott seemed to imply that there are no checks in the system other than impeachment or post-term criminal trials to stop this sort of thing.

I know that's extreme (suggesting a president would simply take his/her chances and try to get away with it anyway...i.e., that even in a criminal trial he could argue that the nation's security demanded it), but my original question to M Scott was whether the idea that the president had collaborated premediatedly on such a venture would make a criminal conviction more or less likely.

I think I'm still confused here.

[von]

I second Katherine's analysis.

The loophole you and M. Scott discussed, Edward, probably exists. Note, though, that it's not being advocated in the "Memo" or "Memos".

[von]

but my original question to M Scott was whether the idea that the president had collaborated premediatedly on such a venture would make a criminal conviction more or less likely.

BTW, you're suggesting a very intriguing (and very, very perceptive*) issue, Ed. A President who agrees in advance to pardon a criminal wrongdoer might be guilty of criminal conspiracy, even though the power he exercised (the Pardon power) was entirely proper or legitimate. The heart of a conspiracy, after all, is an agreement to commit a criminal act; that you did not commit the (or even "a")criminal act yourself is generally of no moment.

Maybe I'll write a full blog entry on the issue.

von

*Particularly since you're a layperson! Consider law school, if the art thing not work out.

[Edward]

Note, though, that it's not being advocated in the "Memo" or "Memos".

I actually knew that, but didn't clarify here enough.

I think M Scott and I were getting ahead of the discussion somewhat by imagining someone called the president on the "authority to set aside the laws is 'inherent in the president'" bit after he had pardoned someone who "broke the law".

We weren't interpreting the text of the memo/s.

[JKC]

I'll agree with Slarti's edit and add that I should have phrased it that way in the first place; I was thinking specifically of Watergate and Iran-Contra. God knows they aren't the only examples of Presidential hubris.

[Edward]

Maybe I'll write a full blog entry on the issue.

Please do, Von. I think it's interesting food for thought too.

Kind of happy with the art thing though. : )

[Slartibartfast]

Dang. First, I agree with Jesurgislac. Next, JKC agrees with me. Stop it, you guys. You're scaring me.

[sidereal]

I agree with Slarti. It's scary.

[Katherine]

From the AP, some quotations from Ashcroft today:

"The Department of Justice will both investigate and prosecute individual who violate the law. The Torture Act is a law that we include in that violation."

"The president of the United States has not ordered any conduct that would violate the Constitution of the United States, that would violate not one of the laws enacted by the Congress, or that would violate any of the various treaties."

I would like to be reassured by that. But this memo contends that it breaks no law or treaty for the President to order torture. If the memo represents the policy of the Justice Department--and Ashcroft refuses to say whether it does or not, let alone release its contents--these statements are vacuous, non-denial denials.

This one, from the NY Times, is no better:

Ashcroft "told a Senate committee today that President Bush had 'made no order that would require or direct the violation' of either the international treaties or domestic laws prohibiting torture."

Even leaving aside the question of just when the DOJ thinks the President or those under his command could ever violate the law--what about an order that didn't "require or direct" torture, but authorized it under certain conditions or left the decision at interrogators discretion? Would that be covered?

[Katherine]

(if anyone has a link to a transcript of today's hearing I would be most appreciative.)

[a Phoenician in a time of Romans]

I also think it's fair to say, even as a rank amateur, that many of them are well outside the mainstream of constitutional law--let alone international law. The idea that not only does the President have unlimited and indefinite authority to declare someone an unlawful combatant if Congress doesn't say otherwise, and to torture them up to and including death, but it is unconstitutional for Congress to regulate it, is beyond the pale.

Do you recall that the Declaration of Independence levels this charge against King George?

"He has affected to render the Military independent of and superior to the Civil power."

Could anyone remind the Bush administration of this piece of history?

I would be making this comment at the Whiskey Bar but, alas, Billmon has fallen prey to the Little Green Echo Chamber syndrome, and now bans people whose opinion he disagrees with. How the mighty have fallen.

[Sebastian Holsclaw]

This is not an attempt to defend torture.

"Funny how we got through two world wars, several smaller ones and a host of other low intensity conflicts without feeling the need to sanction torture."

Is this really true? I would have sworn that I have read stories about U.S. treatment of SS officers in France and Japanese soldiers in the Phillipines that would absolutely fall under Amnesty International's current definition of torture.

Once again I not defending torture, just wondering about the history of actual treatment. The U.S. has long been known for its excellent treatment of prisoners. But I am not at all sure that means that we never sanctioned torture, especially of the less physically damaging type.

[sidereal]

Or even the more physically damaging type, if we can outsource it Contra-style.

[Jadegold]

This is not an attempt to defend torture.

Of course it is. And I'm rather distressed by your use of terms describing torture as "less physically damaging" as if torture was a commodity that can be purchased in S, M, L , XL sizes.

More precisely, this memo (and associated others) are a blatant intent to lay the legal groudwork to: a.)circumvent the Constitution; and b.)permit senior leadership to escape responsibility for clearly criminal acts.

I've got to believe we're better than this.

[Sebastian Holsclaw]

"Of course it is. And I'm rather distressed by your use of terms describing torture as "less physically damaging" as if torture was a commodity that can be purchased in S, M, L , XL sizes."

No, I used the term because not everything that Amnesty International considers torture is what I would consider torture.

Cutting off testicles-we both call that torture.

Shoots under fingernails-we both call that torture.

Sleep deprivation for less than 3 days-AI says torture I say not torture.

Non-damaging dietary control-AI says torture I say not torture.

For the most part I see the distinction as being covered under the less physically damaging rubric.