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Presidential Powers The Wall Street Journal has a long front-page story today that demolishes a few more pathetic fragments of the Abu Ghraib cover up - this time by tracing the cover-your-ass legal trail directly to Donald Rumsfeld. Unfortunately, the story itself is imprisoned behind the Journal's subscription-only firewall. (Update 12:51 PM ET: It's already escaped into the Googlesphere.) The nub of it is that in March of 2003, on the eve of the Iraq invasion, Rumsfeld asked for, and received, a 100-page legal memorandum that specificially sought to establish a legal basis for use of what the Red Cross now calls "practices tantamount to torture": The report outlined 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 ... deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawfull. 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. It's not clear from the article what relationship this report - which was drafted by a team of military, intelligence agency and DOJ lawyers - bears to the various legal memos already uncovered by Newsweek. Perhaps it's the finished product, so to speak - a U.S. government licence to torture, with the legal i's dotted and the t's crossed. That, at least, is what the deleted attachment suggests. There are many creepy things about the Journal's description of the report - things that leave me with the distinct impression the drafters could have graduated with honors from the University of Berlin's law school, circa 1942. For example: 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." (emphasis added.) Now I have to admit: The idea of using the Nuremberg trial as a field guide for committing war crimes and getting away with it has never occurred to me before. But then, I'm not a Bush administration legal appointee. It's probably worth remembering, though, that the Nuremberg Tribunal wasn't particularly impressed by the "I was only following orders" routine: 12 defendents hanged, 3 sentenced to life, 4 given long prison sentences, only 3 acquitted. If I were Donald Rumsfeld, I don't think I'd like those odds. Not, of course, that there's any danger an American military official will ever ending up in the defendants dock at the international criminal court - another potential legal complication the administration already has covered. But what's really striking about the report - and have implications that probably go way beyond the war against terror - are the sweeping claims of executive power it makes. The idea that no man, even the president, is above the law appears to be one of those "quaint" notions that no longer has any place in American jurisprudence: 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... A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign the president virtually unlimited authority on matters of torture - to assert "presidential power at its absolute apex," the lawyer said... The working-group report elaborated the Bush administration's view that the president has virtually unlimited power to wage war as he sees fit, and neither Congress, the courts nor international law can interfere... Citing confidential Justice Department opinions drafted after Sept. 11, 2001, the report advised that the executive branch of the government had "sweeping" powers to act as it sees fit because "national security decisions require the unity of purpose and energy in action that characterize the presidency rather than Congress"... And, my favorite: 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." (emphasis added) It's interesting to compare this doctrine of executive supremecy - really, a modern-day version of the Fuehrerprinzip - with the more constricted view taken by conservative legal scholars when Clinton's lawyers advanced the notion that perhaps, just maybe, the chief executive shouldn't be subject to private harassment suits during his term in office. But, as we all know, 9/11 changed everything. The question, however, is whether everything will change back the next time a Democrat takes the oath of office. Having asserted � and made such fateful use of � the dictatorial powers outlined in the Pentagon's legal torture guide, how comfortable will our GOP legal warriors be when and if the opposition lays its hands on those same powers? I don't ordinarily go in for paranoid conspiracy theories, but thinking about the political implications of the legal castle the Bush administration has constructed for itself � and the possible consequences of being evicted from that fortress, I can't help but be reminded of ex-CIA analyst Ray McGovern's recent warning: 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. Raving paranoia? Go back and read that bit about "authority to set aside the laws is inherent in the president." You just might be hearing more about that, one of these days. Update 1:00 PM ET: Phil Carter at the Intel Dump has some comments on the Pentagon report. He also thinks it amounts to a legal how-to guide for torturers. Carter is a former military officer and (I think) an intelligence analyst and a lawyer, so his perspective is worth noting. He, too, focuses on the memo's assertion of a presidential "nullification" power, and he quickly disposes of this legal manure, citing a few of the relevent precedents. Carter's a moderate-to-conservative guy, very deliberate and thoughtful, so I thought his conclusion was more significant than the wording might suggest: Even in wartime, the President's authority to act is limited by the Constitution, and where Congress has specifically proscribed activity. Advice to the contrary is wrong, and any actions which follow this advice are probably unlawful as well. (emphasis added) I realize it's an academic point, given which party currently controls Congress, but the trail does seem to be pointing towards specific impeachable offenses, by Rumsfeld if not Bush. Update 1:22 PM ET: Discourse.net points out an ironic aspect of the Pentagon memo, as reported by the Journal: It specifically excludes Guantanamo from the U.S. Torture Statute because the base is within "the special maritime and territorial jurisdiction of the United States, and accordingly is within the United States"... This, however, diametrically contradicts the Justice Department's argument (and a D.C. Circuit court ruling) in cases brought by the Guantanamo detainees, which held that Gitmo is explicitly not U.S. territory, and therefore not subject to the writ of habeus corpus. O what a tangled web, etc. ----- I Pledge Impertinence to the Flag-Waving of the Unindicted Co-Conspirators of America and to the Republicans for which I can't stand one Abomination, Underhanded Fraud Indefensible with Liberty and Justice Forget it. -Life in Hell (Matt Groening)
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