Bloody hell…

Some “administration lawyers,” to be none to specific, apparently opined in a March 2003 confidential memo that the President is bound neither by international treaties nor federal laws regarding torture, and that any such prohibition “must be construed as inapplicable to interrogation undertaken pursuant to his commander-in-chief authority.” (News story)

Phrased another way, torture is permissible so long as it’s for interrogation purposes and done for ultimately military purposes.

Or to highlight the obvious inference, the president is above all laws, federal, state, or international treaties, so long as he argues that his actions are in some way, shape or form pursuant to his duty as CiC of the armed forces.

Apparently this wasn’t a sole memo – there was a chain of them, largely prepared for Rumsfeld, used to justify activities first at Guantánamo, then in Afghanistan, and finally in Iraq. Much of its basis was an earlier memo (22 Jan 2002) from the Justice Department on arguments to keep American officials from being charged with war crimes.

Where the hell does our administration find these people? And have they lost their minds completely? Are they completely unaware of what happens when a leader or a military places itself above the law, above the Constitution, and above civil society?

(And let me state, for the record: I believe that commanders need a great deal of flexibility to deal with situations in war, especially nonconventional war. But decisions such as the use of torture cannot be unilateral and immune to judicial and legal review, and the President cannot demand blanket exemption from American law for any reason whatsoever.)

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Published in: on June 7, 2004 at 20:43  Comments (6)  
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6 Comments

  1. Is the evualation corrent?
    My first thought is are the memos correct? Is the torture “legal” in this particular case? Does it manage to side-step both American and international law?
    I suppose the most important question (for ourselves) is where the power of the CiC is limited. I get the impression that the CiC DOES have a very wide leash when conducting military operations, particularly on foreign soil. If so that isn’t just a failure of our elected government, that’s a problem with our laws.
    As for where they find these people,the easiest thing to do in the world is find like-minded people. You just surround yourself with people that agree with you and tell everyone else to go away. That way you never hear a dissenting voice. I am sure that they all have faith in everyone involved because “our leader and our military would never do the wrong thing. We can trust our people to do the right thing.”
    It always amazes me how much people tend to trust other people. (This was brought home to me at Baycon recently,but I digress) When the patriot act was first being proposed many people would acknowledge past abuse by the federal government but that was ancient history and would never happen today and they MEANT IT. I can understand people thinking that the U.S. government is better then most, less corrupt then many,blah blah blah. What amazes me is the dismissal of “what-if?” questions. Most people have a laundry list of “unthinkable” questions and really can’t tolerate a discussion on any of them,i guess.
    I guess when you feel totally powerless about something it is easier to trust that everything will work out then worry if it won’t.

  2. Are they completely unaware of what happens when a leader or a military places itself above the law, above the Constitution, and above civil society?
    Answer choice #1: Yes. The administration has somehow found itself the dumbest lawyers on earth.
    Answer choice #2: No. They don’t believe what they’re saying, but they have to say whatever they can to justify the administration’s policy.
    Answer choice #3: No. They know what happens when the president gets above the law. And they like it.

  3. While I share your concerns, this is not new news.
    Case in point: the Commander-in-Chief, in times of national emergency, may declare martial law and suspend the Constitution.
    Scary, no?

  4. While I find the situation horribly frightening as it counters almost 800 years of rule of law in the English-speaking world.
    I must correct you in your martial law assesment. First, the Bill of Rights cannot be revoked even when martial law has been declared. Also martial law can only be declared for a limited period of time and requires constant renewing and approval from the legislature.
    National martial law has never been declared in the US, in fact the only President to envoke martial law was Lincoln and he only envoked it in Maryland to keep it from leaving the Union.
    What martial law basically means in the English speaking world is that local government can be suspended and the executive can take on direct operation of that area.
    Also you must remember political culture, in countries where dictators use Martial Law to dissolve legislatures and take power, the society often than not is relativly passive to it. In Indonesia for example, many people think it is just how the whole process works. In out society would the President do that, there were be mass riots against it. Of course, perhaps people have become so apathetic and deluded that were glossy paper strings attached it might sell.

  5. Scary, yes. But such powers are subject to the widest of popular review, and no president seriously expects to get away with doing so capriciously. Even Lincoln’s suspension of habeas corpus was done openly and for the duration of a war. What concerns me most in these memoranda is that they appear to be building a rationale for the president to act above the law in a much wider range of cases, simply “pursuant to his authority as CiC.” It seems that under this rationale, any military action – say, the invasion of Grenada or of Panama? – would be more than sufficient cause for the president to order the imprisonment, detention, and/or less savory things for anyone who objected. It’s the scope of the rationale that alarms me.
    Moreover, even a more limited rationale is dangerous today in a way that it wasn’t a few years ago – the threat of terrorism has been given the status of war, and with it a notion of war powers for the president, but there’s no clear victory condition in such a war, nor a clear point at which such a war may be over. This means that powers extended to the president are being granted on a potentially indefinite timescale, and given the way inertia tends to go, that could well mean “permanent.”
    So yes, I find this alarming.

  6. It’s not because of specific legislation (the Torture Act and the International Convention on Torture, to which the US is signatory) to the contrary. US forces, at home and abroad, are specifically prohibited from the use of torture. The arguments of this document seemed to center on what it takes to constitute torture; for instance, that even actions which would clearly cause extreme pain or distress to the victim do not constitute torture unless the actor’s primary intent is to do so. (As opposed to the pain being incidental to something else the actor wants to do, e.g. interrogate a person)
    As far as where they find the people… depressingly correct.


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