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June 13, 2004 - Ask a lawyer, get an answer...

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The Wall Street Journal is actually turning out to be one fine newspaper.  As many have recently been pointing out, these folks report real news, important stuff – scooping the Washington Post and New York Times.  Of course their editorial page is still the domain of brutish Neanderthal rants against those who perversely choose to be poor (the “lucky duckies” who don’t pay the proper percentage of their pitiful income in taxes but use up all the damned sevices), against those who do not see George Bush as a towering moral figure, and also the domain of the loony and sentimental Peggy Noonan and her magic dolphins rescuing heroic folks fleeing Cuba for Miami.

Early last week the news half of the paper – not the opinion half – dropped another bombshell.

The newspaper got hold of a classified draft of a Pentagon report from 2003 that pretty much works out the legal reasons why President Bush is not bound by any laws and treaties prohibiting torture – and the draft report concludes that the Justice Department cannot prosecute our soldiers, or any government agents, who engage in torture at his direction.

The Journal item was only available in print, and on the net if you have a paid subscription to the paper.  That’s a bit expensive.  Reuters had a summary.  The bootleg copy of the full article, every word in proper format, showed up here – but if you believe in the value of copyright laws your really shouldn’t click on that.

Ah, but late in the day June 8th the Journal posted the complete memo, their source materiel for the story, and it is available online – with no restrictions.  They got their scoop, and this posting, open to the world, is clearly a sort of in-your-face “ha ha” to all the other newspapers that don’t seem to get the hot items.  Judith Miller at the Times, the nation’s most influential newspaper (the paper of record, as they say) – Judith Miller, perhaps the key journalist who bought everything Chalabi claimed and reported it all as unquestionably true (with the approval of her editor Howell Raines), and who then bought the White House line that she was on the right track (Cheney said on Meet the Press that all the WMD stuff had to be true because it wasn’t just him claiming all this, it was the “liberal” New York Times) - Judith Miller who thus was one pivotal influence in making this war possible… well, Judy, here’s what real “source information” looks like.  Howell Raines was forced to resign.  Judy, it’s your turn, even with your Pulitzers.

But I digresss…

What this all comes down to is that back in March of 2003, just before we rolled into Iraq, Donald Rumsfeld asked for, and received, an extensive legal memorandum.  The idea was to establish a legal basis for what to many, like the International Red Cross and most world opinion, now seems like torture – the messy stuff in the photos and what has been reported from Guantánamo.

What Rumsfeld got was a hefty pile of paper the reviews our own laws and international treaties forbidding torture, and then goes on to lay out why those restrictions might just “be overcome” by national-security considerations - or by a few well chosen legal maneuvers.

The Journal got their hands on the March 6, 2003 draft of this report.  Of course some passages were deleted.  Security.  And what was missing?  An attachment listing specific interrogation techniques and whether Rumsfeld, or others, must grant permission before these curious and painful techniques could be used.  But the general idea is clear, isn’t it?  The Journal also tells us that the complete draft document – including those missing details - was classified "secret" by Rumsfeld and scheduled for declassification in 2013.

So pretend it’s 2013 – for the fun of it.  From the Journal:


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 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.


Yep.  Things changed when the World Trade Center towers went down.  The old rules do not apply.

And to juice things up a bit, the Journal tells us one of the authors of the draft report is William Haynes, now awaiting confirmation as a federal judge.


According to Bush administration officials, the report was compiled by a working group appointed by the Defense Department's general counsel, William J. Haynes II.

Air Force General Counsel Mary Walker headed the group, which comprised top civilian and uniformed lawyers from each military branch and consulted with the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency and other intelligence agencies. It isn't known if President Bush has ever seen the report.


One assumes Bush has not seen the report.  He delegates.


Oh, and by the way, Air Force General Counsel Mary Walker is a born-again Christian activist from San Diego.  Of course.

But what is so newsworthy about this classified report?  Try this – arguments that we can use torture, legally:


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.


Yeah, read that carefully.  Our personnel can be protected.  Hey, it worked for the Nazi guys.

But the core idea is even more newsworthy:


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" ...


Yep, he be the man.  Statutes and such do not matter.  He has absolute power.

Really?  Yes indeed.


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."


The authority to set aside the laws is "inherent in the president?”

Why the hell did we then go through all that Watergate business with Nixon?

Phillip Carter, a former military officer and a lawyer, comments that this may not be so.


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.


Don’t tell that to Rumsfeld.

Robert Dreyfuss adds this:


... here’s how the Pentagon’s shysters split the torture hairs: "The infliction of pain or suffering, whether it is physical or mental, is insufficient to amount to torture,’ the report advises. Such suffering must be ‘severe,’ the lawyers advise, and they rely on a dictionary definition to suggest that it ‘must be of such a high level of intensity that the pain is difficult for the subject to endure.’

The report goes on to say that Congress has no business trying to regulate whether U.S. soldiers or other officials torture prisoners, since that would violate the commander-in-chief’s constitutional power to wage war.  “Sometimes the greater good for society will be accompanied by violating the literal language of the criminal law,” says the report.


Okay.  Who then defines the greater good?

The Journal has stirred up a hornets’ nest.

And here’s a curious comment from Josh Marshall –


So the right to set aside law is "inherent in the president".  That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president.  It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around.  This is the essence of what the rule of law means -- a government of laws, not men, and all that.

Now, we know that presidents sometimes break laws and they frequently bend them, if only in cases where the laws don't seem to anticipate a situation the president finds himself confronting.  There is even an argument that the president can refuse to enforce laws he deems unconstitutional.

But there is no power inherent in the president simply to set aside the law.  Richard Nixon famously argued that "when the president does it that means that it is not illegal."  But the constitutional rulings emerging out of Watergate said otherwise.  And history has been equally unkind to his claim.


Marshall goes on to discuss how Jefferson analyzed this issue.  A president MAY break the law.  Of course.  But Jefferson argued that when he does, he is then obliged to explain that he has and ask for a judgment – he should, Jefferson says, submit himself for punishment for breaking its laws, even in its own defense.  Click on the link for detail.

That is not going to happen here.  Bush doesn’t make mistakes or do wrong or have regrets.  Forget it.

Torture?  Well, humiliation, pain and suffering, a few homicides, a bit of rape.  Not just in one prison but in many. 


But it’s just a few bad apples.  Not our policy.


Nothing to see here.  Just move on, folks.


But if you are going to torture people, we seem to have a nifty new tool!

See Beam burns into the future
Greg Gordon, Minneapolis Star Tribune Washington Bureau Correspondent, May 30, 2004

And this is it!


WASHINGTON, D.C. -- Test subjects can't see the invisible beam from the Pentagon's new Star Trek-like weapon as it heats the water molecules in their bodies. But no one has withstood the pain it produces for more than three seconds.

People who volunteered to stand in front of the directed energy beam say they felt as if they were on fire. When they stepped aside, the pain disappeared instantly.

The long-range column of electromagnetic wave energy is known as the "Active Denial System" (ADS) for its ability to prevent an aggressor from advancing. Senior military officials, who plan to deliver the device for troop evaluation this fall, say years of testing have produced no sign it will lead to health effects beyond perhaps causing skin to temporarily redden.

It is among the most potent of a new generation of futuristic "less-than-lethal" weapons being developed by the Defense Department -- tools that could dramatically alter the way soldiers fight wars and police control riots.

… When the beam hits a person, it penetrates 1/64th of an inch beneath the skin and heats water molecules to 130 degrees in less than a second.

"It tricks the pain sensors into thinking they're on fire," said Rich Garcia, a spokesman for the Air Force Research Laboratory at Kirtland Air Force Base in Albuquerque, N.M.

Garcia knows firsthand. He was among hundreds of test volunteers who stood with their backs facing the device.

"They did a full body back shot," he said.  "It hit in the small of my back first.  For the first millisecond, it just felt like the skin was warming up.  Then it got warmer and warmer and you felt like it was on fire."

He said he lunged away.

"As soon as you're away from that beam your skin returns to normal and there is no pain," Garcia said.  "I thought to myself, 'Why, you wimp.  You know it's not causing any damage.  You'll be able to override it.'  Each of the next three times, I was on there a little bit longer ... about two seconds. It felt like my hair was on fire."

… Maj. Jonathan Drummond of the Air Force's Directed Energy Bioeffects Division noted that the weapon could provide U.S. forces "with a nonlethal capability in military operations other than war."  Among possible uses, he listed peacekeeping, humanitarian operations and crowd control.

Marine Capt. Dan McSweeney, a spokesman for the Non-Lethal Weapons Directorate, pointed to "instances in Iraq where crowd situations have unfortunately ended in violence" and death.


Okay.  Crowd control.

But if your needed information?  This could be really useful.


"It seems fundamentally a weapon that's designed to create a great deal of pain and fear," said Johnson, the center's executive director.  "The concern I would have is ... once this kind of technology is available and there's a perception that it's safe and nonlethal, it seems like a natural device to be used in interrogations."


Unbearable pain.  No marks.  No permanent, traceable damage.  Donald Rumsfeld is smiling this week.



Smoking gun? What smoking gun?


So this report laid out the case that the president has the power as commander-in-chief to set aside any laws - by his own fiat (not the car) - and such a fiat would protect anyone who was following his orders.  Torture is okay for the greater good and the president is, in effect, above the law.

And we have a new weapon – the long-range column of electromagnetic wave energy – this "Active Denial System" (ADS).

A friend wrote this in reaction, Joseph, an American living in France at the moment -


In my mind, this is the smoking gun, strongly implying that the abuses were in fact a matter of policy.  Only an implication, however, without that classified list of acceptable practices.  It does seem to me (and I may be romanticizing the past) that not so long ago - let us say "Iran-Contra affair" - that such legalistic maneuvers after the fact let alone before it would have been considered by the public as prima facie evidence that some wrongdoing had occurred.  Alas, no more.

This is an important break with the past.  Any administration has so many means at its disposal to withhold information that actual constructive evidence against it can rarely be produced.  If, therefore, it has no fear of even the appearance of wrongdoing and can no longer be damaged by such appearances (speaking of Regan), then it has little to fear.  And we have much.

The thing which strikes me as the most disturbing about the new "torture ray" - aside from my desire to buy one - is that it harkens back to the days when dirty cops used to beat suspects about the head with a telephone book.  This left no marks, but sufficiently bounced the brain around inside the skull that confessions were easily induced.  Because there were no visible signs of torture, it was rather problematic for the suspect claim that said confession was obtained under duress.  Nope, no 5th amendment issue here.

This is to say nothing of the tendency of the tortured to say whatever they think will make the torture stop.  Most of the brass has admitted that the torture employed in Iraq has yielded very little.  But I'm certain that contrary to the images from the torture we've seen in Mel's movies where the hero or villain stoically refuses to give the information he has, "Marathon Man" is probably more the reality –

"Is it safe?"

"Oh yes, it's very safe.  Couldn't get any safer"


"Is it safe?"

"… nope.  Totally unsafe.  Magic 8 ball says come back later."

And so on....

Even if this "invisible" torture yields useful information, it is disturbing, and not only for legal reasons.  It does rather conform to certain stereotypes in the Arab world that we are “dishonorable".  Better to them that we beat them in public with a lash until they tell us what we want to hear.  Better to me, too.


Well, moves are afoot.

See Ashcroft Says Bush Rejects Use of Torture
JOHN J. LUMPKIN, Associated Press Writer - Tuesday, June 08, 2004


WASHINGTON - Attorney General John Ashcroft said Tuesday he was not aware of any order by President Bush that would violate U.S. laws or treaties banning torture of military prisoners captured in Iraq or elsewhere in the war on terrorism.

"This administration rejects torture," Ashcroft declared under tense questioning by members of the Senate Judiciary Committee.  But he steadfastly refused to comment directly about a policy paper on this issue, or say whether Bush ever responded to it.

But, Ashcroft did say, "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."

… Said Ashcroft: "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."

Ashcroft would not comment directly on the 2002 departmental memo that laid out a rationale in which the president was not necessarily bound by anti-torture laws or treaties because of his authority as commander in chief to protect national security.

Sen. Joseph Biden, D-Del., asked Ashcroft whether there is any presidential order that "immunizes (from prosecution) interrogators of al-Qaida suspects?"

"The president has issued no such order," Ashcroft replied.

The attorney general said the policy memo on this issue would not be made available to the committee, however.  And Ashcroft said that while he respected the constitutional right of Congress to ask questions, "there are certain things that, in the interest of the executive branch operating effectively, that I think it is inappropriate for the attorney general to say."


Don’t ask.  Don’t tell.

It’s not your business.

But Biden went on, being a pain-in the-ass rather nicely:


"Do you think torture might be justified - not a memorandum - just a question to you, attorney general of the United States?" Biden asked.

"I am not going to issue or otherwise discuss hypotheticals.  I will leave that to academics," Ashcroft replied.

"John, you sound like you're in the State Department," Biden shot back.

"I condemn torture. ... I don't think it's productive, let alone justified," Ashcroft responded.

Biden told Ashcroft "there's a reason why we (Congress) sign those (anti-torture) treaties" and it is to protect U.S. military personnel.


Biden doesn’t get it. 


I think the idea is others cannot do this torture thing – if they do they will get blasted.  We can do such things.  One of the perks of being the only superpower left in this world?

The AP item goes on to explain that Pentagon spokesman Lawrence Di Rita said Monday that a policy paper detailing staff legal analysis was part of an internal administration debate on how to obtain intelligence from al-Qaida operatives in U.S. custody, within the confines of a standard of humane treatment.  The intelligence sought was to prevent terrorist attacks, he said.

And that makes lots of things okay, as the current argument goes.

Di Rita also said the final set of interrogation methods adopted for use at Guantánamo in April 2003 are humane, legal and useful — and more restrictive than the methods some had proposed.

So, gee whiz, it could have been worse.  We were practicing great restraint.  Give the Bush team some credit here!

I’m not sure any of this makes it all better.

Does this story have legs?  Perhaps.



Kevin Drum at the Washington Monthly is keeping track of these administration memos and position papers regarding torture of enemy prisoners – if you’re enthralled by this “smoking gun” idea.  He points out that the Washington Post came up with another one this week, from August of 2002.

Four. Here’s his summary:


January 9, 2002: Justice Department lawyers John Yoo and Robert J. Delahunty argue that "customary international law of armed conflict in no way binds...the President or the U.S. Armed Forces."  Despite this "anything goes" argument, they go on to say that President Bush could still put Al Qaeda and Taliban fighters on trial as war criminals if they violate international laws.

January 25, 2002: White House counsel Alberto Gonzales warns that treatment of Taliban prisoners could be interpreted as war crimes.  To avoid this possibility, he recommends that President Bush exempt captured Al Qaeda and Taliban fighters from the Geneva Conventions.

August 2002: A Justice Department memo about torture says that "necessity and self-defense could provide justifications that would eliminate any criminal liability."  Translation: torture is OK if we really, really think we need to do it.

April 2003: The Department of Defense says that "(the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority."  In other words, as long as the president approves it, torture is OK.

The administration says that despite this rather chilling obsession with torture, all prisoners have been treated humanely.  Maybe.  But surely I'm not the only one who finds it disturbing that the topic of torture came up almost immediately after 9/11 and continued to be a subject of conversation on such a regular basis after that?  They have an almost Nixonian penchant for trying to figure out how far they can go, how much they can get away with, and how best to protect themselves from future prosecution for war crimes.

I've got something simpler for the plainspoken President Bush: "We don't torture prisoners.  Not on my watch."  Why didn't he say that instead and just put the whole subject to rest?


If you have to ask why, you don’t understand the man.


Another friend in France, Ric Erickson of MetropoleParis added some comments.


In his comments Ric notes, in case you have not followed such things, Henry Kissinger can no longer visit France - as soon as he steps on French soil Henry is liable to arrest.  I assume this includes Martinique and Tahiti and all the DOM-TOM's.  And this also includes Chile, Argentina and Spain.  You see Henry, unfortunately, has been indicted for war crimes, crimes related to September 11th - and no, not that one!   September 11 of 1973 and the business with General Augusto Pinochet.  I'm not sure this bothers Henry at all, save he probably misses dinners at Taillevent, restaurant gastronomique à Paris, on the US taxpayers' (State Department) tab.


From the other side of the pond Ric adds this:


There seems to be some doubt about the status of the United States.


There is only one hyper-power in the world today, and it is the United States.  The French saying 'hyperpuissance' doesn't make it any less true.  Reagan got what he wanted.  Reagan got what US taxpayers paid for.  Quit whining about it.


And as for these memo above, Ric is brief:


On the first: 'Hyperpuissance' aside, what will the Bush reaction be when he is charged by the World Court with war crimes for violating international laws?


On the second: 'Hyperpuissance' aside, what will the Bush reaction be when he is told he alone can't rewrite the Geneva Convention(s)?


On the third: The 'translation' and 'hyperpuissance' aside, what will the Bush reaction be when he is charged by the World Court with war crimes anyhow?


On the fourth: 'Hyperpuissance' aside, what will the Bush reaction be when he is charged by the World Court with war crimes despite the best legal advice the White House can buy?  Will his lawyers be co-defendents if they are wrong?  Hasn't he noticed how Henry K doesn't make trips to Europe anymore?


And as for why the plainspoken President Bush never did say the words - "We don’t torture prisoners.  Not on my watch." – Ric says this:


He didn't say that because he knew the United States had to adopt the French method of obtaining convictions - confessions.  Torture is cheaper than finding court-grade evidence.  But there are already ample stories detailing how torture produces just as much flawed intelligence as French courts put up with in criminal cases.


Too bad the World Court isn't in France.  If it were, and Bush was convicted, he could say he was truly sorry and the court might show mercy.  This would be more likely if he confessed at an appropriate time, before the court got the idea he was dicking them around.


As for asking 'why,' the answer is just as simple.  Torture, in this 21st century, in the eyes of the managers of the world's only 'hyperpuissance,' is okay.  Lying is still the greatest taboo.  People under torture who lie can be charged with contempt or obstruction.


The poor suckers are trapped in a legal stranglehold.


                   - Ric, the Paris paralegal (part time)


Indeed they trapped in a legal stranglehold.


Matt Yglesias cites Jim Henley arguing the issue isn’t even torture:


The issue now goes beyond torture to the very structure of American government.  Torture is the symptom.  The concept that the President is not just himself above the law, but a supralegal authority, is the malady.


And Yglesias adds this:


Quite so.  If the president had submitted a bill to congress suggesting that America laws against torture ought to be repealed for the duration of the war on terrorism (or even permanently) and then congress had passed it, I would not be happy with their actions.  But then again, congress passing laws I don't like and the president signing them happens all the time.  That's the way the government works -- sometimes the wrong guys get into office and they pass bad laws, you try to elect some other guys who will increase the good law/bad law ratio.


What Bush did here, however, was quite different.  Merits of torture aside, this business of writing secret memos proclaiming that the president has an inherent power to selectively abrogate the laws is an absurd repudiation of constitutional government.  The president holds an office and has to administer the state according to the laws as they stand.  He can ask that the laws be changed, but he can't just ignore them.


Wanna bet?


Copyright © 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
as permitted by the fair use doctrine of U.S. copyright law. 
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