Just Above Sunset
June 13, 2004 - Ask a lawyer, get an answer...
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.
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.
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.
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.
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.
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...
Yep, he be the man. Statutes and such do not matter. He has
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?”
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
... 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.’
Okay. Who then defines
the greater good?
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.
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.
But it’s just a few
bad apples. Not our policy.
Nothing to see here. Just move on, folks.
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
Okay. Crowd control.
"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
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.
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.
Well, moves are afoot.
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
"Do you think torture might be justified - not a memorandum - just a question to you, attorney
general of the United States?" Biden asked.
Biden doesn’t get
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?
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.
you have to ask why, you don’t understand the man.
friend in France, Ric Erickson of MetropoleParis added some comments.
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:
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.
as for these memo above, Ric is brief:
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?
the second: 'Hyperpuissance' aside, what will the Bush reaction be when he is told he alone can't rewrite the Geneva Convention(s)?
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?
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
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)
they trapped in a legal stranglehold.
Yglesias cites Jim Henley arguing the issue isn’t even torture:
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.
Yglesias adds this:
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.
This issue updated and published on...
Paris readers add nine hours....