Monday, June 07, 2004

Law? Law No More 

Today's Item Everyone Else Has Already Linked To is an item that's too explosive not to link to. The Wall Street Journal (subscription only, although Billmon links to a copy of the full text) has unearthed a classified memo prepared by the Pentagon's Office of Special Counsel, outlining
U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities. In a March 6, 2003, draft of the report reviewed by The Wall Street Journal, passages were deleted as was an attachment listing specific interrogation techniques and whether Mr. Rumsfeld himself or other officials must grant permission before they could be used. The complete draft document was classified "secret" by Mr. Rumsfeld and scheduled for declassification in 2013.

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.

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" . . . .

A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture -- to assert "presidential power at its absolute apex," the lawyer said. Although career military lawyers were uncomfortable with that conclusion, the military lawyer said they focused their efforts on reining in the more extreme interrogation methods, rather than challenging the constitutional powers that administration lawyers were saying President Bush could claim . . . .

Gen. Hill said Mr. Rumsfeld gave him the final set of approved interrogation techniques on April 16, 2003. Four of the methods require the defense secretary's approval, he said, and those methods had been used on two prisoners. He said interrogators had stopped short of using all the methods lawyers had approved. It remains unclear what actions U.S. officials took as a result of the legal advice.

Critics who have seen the draft report said it undercuts the administration's claims that it recognized a duty to treat prisoners humanely. The "claim that the president's commander-in-chief power includes the authority to use torture should be unheard of in this day and age," said Michael Ratner, president of the Center for Constitutional Rights, a New York advocacy group that has filed lawsuits against U.S. detention policies. "Can one imagine the reaction if those on trial for atrocities in the former Yugoslavia had tried this defense?" . . . .

Administration lawyers also concluded that the Alien Tort Claims Act, a 1789 statute that allows noncitizens to sue in U.S. courts for violations of international law, couldn't be invoked against the U.S. government unless it consents, and that the 1992 Torture Victims Protection Act allowed suits only against foreign officials for torture or "extrajudicial killing" and "does not apply to the conduct of U.S. agents acting under the color of law."
So plainly the memo anticipates, and attempts to find a legal workaround for, instances of torture that might result in the death of the subject. And yes, Donald Rumsfeld lied in his testimony to the Senate Armed Services Committee and needs to go shopping for a criminal defense attorney of his own, just like the Commander-in-Chief.

But the passage that most chillingly reveals the true face of the Bush administration is yet to come:
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."
There you have it: "authority to set aside the laws." No checks, no balances; monarchy. Democracy Over. Do as thou wilt shall be the whole of the law.

How many millions of our fellow citizens would endorse the findings of that memo without a second thought? Billmon links to an article by Ray McGovern of VIPS, in which the retired intelligence analyst warns that
The key question for the next five months, then, becomes how far the administration will go. An elevated threat level justifying martial law and postponement of the election? No doubt such suggestions will seem too alarmist to those trusting that there is a moral line, somewhere, that the president and his senior advisers would not cross. I regret very much to note that their behavior over the past three years leaves me doubtful that there is such a line.
Commentary by Billmon here; by Phil Carter of Intel Dump here; by Josh Marshall here; by Michael Froomkin of Discourse.net here.

UPDATE: Via Zemblan patriot J.D., a depressing answer to the question above:
In today's America, prisoners are held incommunicado for years, newspapers can't photograph soldiers' coffins returned from Iraq and the government can secretly track the books citizens read and the movies they watch.

But civil liberties can erode much further before Americans will say enough is enough, say experts in social history and political behavior.

Fear struck by the Sept. 11, 2001, attacks helped launch the curtailment of civil liberties in the name of national security, and that fear keeps Americans willing to trade away rights for safety, they say.

"We're at war," said Ken Weinstein of the Hudson Institute, a policy think tank. "That's why it doesn't bother us."

Nor is there a clear "tipping point" to swing opinion the other way, added Karlyn Bowman, a polling expert at the American Enterprise Institute. "We don't seem to be anywhere near it at this time."

Just after Sept. 11, 2001, polls showed two-thirds of Americans felt it would be necessary to give up some civil liberties to protect the nation. A year later, that number still stood at about half, Bowman said.

"Most people don't see a broader threat," she said. "People seem to be pretty comfortable with the general state of affairs regarding civil liberties."

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