Reason For Torture - The President is Above the Law

Lawyers Decided Bans on Torture Didn't Bind Bush

The March memorandum, which was first reported by The Wall Street Journal on Monday, is the latest internal legal study to be disclosed that shows that after the Sept. 11 terrorist attacks the administration's lawyers were set to work to find legal arguments to avoid restrictions imposed by international and American law. Washington Post also covers this memo well.

A Jan. 22, 2002, memorandum from the Justice Department that provided arguments to keep American officials from being charged with war crimes for the way prisoners were detained and interrogated was used extensively as a basis for the March memorandum on avoiding proscriptions against torture.

Another memorandum obtained by The Times indicates that most of the administration's top lawyers, with the exception of those at the State Department and the Joint Chiefs of Staff, approved of the Justice Department's position that the Geneva Conventions did not apply to the war in Afghanistan. In addition, that memorandum, dated Feb. 2, 2002, noted that lawyers for the Central Intelligence Agency had asked for an explicit understanding that the administration's public pledge to abide by the spirit of the conventions did not apply to its operatives.

el - The basis of the Constitution, and we have been through this before with presidents and is covered in 7th grade civics class, is that no one, even the president is above the law. Like Reagan, like Nixon, lawyers for Bush try to make the case this is not so. In this case they argue that the president has unlimited authority, not bound by law, to authorize illegal acts of interrogation. Note that the departments familar with POW issues did not agree with this.

Pentagon officials were focused primarily on the interrogation techniques, and that the legal rationale included in the March memo was mostly prepared by the Justice Department and White House counsel's office.

The memo showed that not only lawyers from the Defense and Justice departments and the White House approved of the policy but also that David S. Addington, the counsel to Vice President Dick Cheney, also was involved in the deliberations. The State Department lawyer, William H. Taft IV, dissented, warning that such a position would weaken the protections of the Geneva Conventions for American troops.

Digby at Hullabaloo notes that they are using the Nuremberg defense: Aside from the obvious fact that the Nuremberg defense failed spectacularly, it is also interesting because one of the war crimes the Nuremberg defendents, which included the SS, SA and the Gestapo as well as individuals, were tried and convicted of were using what they believed to be a legally prescribed interrogation method they called "the third degree." I'm sure you've all heard of it.

The Convention Against Torture was proposed in 1984 by the United Nations General Assembly and was ratified by the U.S. in 1994. It states that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture," and that orders from superiors "may not be invoked as a justification of torture."

That prohibition was reaffirmed after the Sept. 11 attacks by the U.N. panel that oversees the treaty, the Committee Against Torture, and the March 2003 report acknowledged that "other nations and international bodies may take a more restrictive view" of permissible interrogation methods than did the Bush administration.

The report then offers a series of legal justifications for limiting or disregarding antitorture laws and proposed legal defenses that government officials could use if they were accused of torture.

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.

The report seemed "designed to find the legal loopholes that will permit the use of torture against detainees," said Mary Ellen O'Connell, an international-law professor at the Ohio State University who has seen the report. "CIA operatives will think they are covered because they are not going to face liability."

Digby writes: Unbenownst to anyone up to now, the US Constitution is apparently the basis for a legal dictatorship. Very interesting indeed that such a radical new interpretation of presidential power should be "discovered" by an administration that was installed by a 5 to 4 vote by the Supreme Court, isn't it?

What's the old saying, "begin as you mean to go on?" They went on as they began, all right, using all levers of power in service of their desired goals regardless of legal precedent or constitutional legitimacy. We shouldn't be surprised. This is what people who pursue power for its own sake always do.

Demosthenes: The line of argument made in the memo isn't new, but very, very old... it's the first stage in a possible process where the powers of the laws is eroded and the powers of the executive rise in their place. Arguing that the president has the right to "set aside the laws" is an argument for absolute executive power, because the supremacy of "the laws" is the only real power that the legislature and judiciary have. Without this legal supremacy, the United States becomes like every other fragile republic in the Americas.

We know what will happen. We've seen it dozens of times before, and we'll see it dozens of times in the future. Republics are always haunted by the spectre of their "commanders-in-chief" becoming simply "commanders". The Latin word for commander is "imperator", more popularly known as "emperor". America may yet have its Napoleon; its Octavian. That it hasn't happened yet does not mean it won't.

Josh Marshall also sees this: 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.

Legal debate on the memo, which first year law students ridicule, is at, among other places, discourse.net: That the President’s powers are at their greatest in these circumstances cannot be disputed. But while the discretion is indeed very great, I do not see how it could possibly be read to include the authority to commit war crimes, even pre-Nuremburg. And today it clearly cannot include that authority, at least without explicit Congressional authorization. Thus, the entire discussion of Presidential power is based on a premise so false that any student who has taken introductory International Law should be able to recognize its error. And as any logician will tell you, when you begin with an erroneous premise, you are in trouble... Page 23 really goes off the rails, making an argument popular with the Federalist Society (el - see European look at this influential group), but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power... The Constitution does not make the President a King. This memo does.... If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, “I was just following orders” is NOT (and should not be) a defense.

Wildest leap - radical muckrakers From The Wilderness tie the leak of these documents to CIA revenge, a plan to bring down the president by impeachment before or after the election. All of their facts are correct, including a good discusion of the harm the administration did the CIA in the Valerie Plame affair, you can dispute the implications.

Atrios also brings us Beautiful Horizons clear analysis of the law and why this memo is so very wrong on the law. Atrios recomends jail for the administration.

Kevin Drum had the basics, unlike all other president's facing threats to the U.S. Bush lacked good moral clarity.

Froomkin: "And just imagine what those guys will do if they don’t have to worry about re-election."

Thanks to natasha to pointing out billmon, who knows who is in charge of this interpretation giving Bush divine rights to rule as he sees fit: Praise the Lord and Pass the Thumbscrews - Mary L. Walker - Christian, Republican, Patriot, Torture Attorney. Someone should do another post on all the Christians on a crusade in this administration: Rice, Ashcroft, the generals. None of them believe in the law because their righteousness trumps that.

Natasha also reports on another prison scandal. What the Bush administration is doing to reporters who try to come to this country now without declaring they are a reporter can only be compared to totalitarian regimes. Way to make friends and influence people, you guys. These are reporters thay are mistreating.