Sunday, June 13, 2004

Review - "This Man's War"
I encourage my readers to check out the review in this Sunday's Washington Post of Andrew Exum's "This Man's Army", currently featured as Intel Dump's book of the month. The author is a former Army captain who led infantrymen during three combat tours in Iraq and Afghanistan; the book recounts the training he went through in order to become an infantry platoon leader, and his experiences as one under fire. Thus far, we haven't had the chance to read many first-person accounts of operations during America's war on terrorism. "This Man's Army" provides a good insight into the way these operations are actually conducted on the ground, and the hardships faced by our soldiers as they fight in our name.
When the history of the current troubles is written, it will be built from the memories of people like U.S. Army Lt. Andrew Exum. His trooper's-eye view of the Afghan war is not the story of the biggest battle or the greatest victory, but it nevertheless is a lively account of the fight to wrest high plains territory from the Taliban.

More of Exum's soldiers succumbed to altitude sickness or post-combat stress than to enemy bullets. His platoon of the 10th Mountain Division spent more time waiting for action at Camp Doha in Kuwait than deployed in the field in Afghanistan. Despite the sporadic nature of the conflict, platoon commander Exum brought his men to such a high standard that they became the top-rated unit in the battalion, and his company was regarded as the best in the brigade. These achievements lend credibility to his narrative.

Exum followed a somewhat unusual path to military service. Born in Tennessee, he attended the University of Pennsylvania, where he joined the Reserve Officers Training Corps (ROTC) to help pay his tuition, eventually becoming cadet commander of his ROTC class. Lt. Exum went through several phases of Army training after college and was eventually assigned to the 10th Division at Fort Drum, N.Y., from where his unit was sent to the Middle East.

Perhaps befitting a man with his educational background, he has studded his book with literary and philosophical references, including Shakespeare, Vladimir Nabokov, Walker Percy, Somerset Maugham, Jorge Luis Borges, Immanuel Kant and Reinhold Niebuhr.
My thoughts: First-person accounts are invaluable for those who want to understand war from a distance, or even just the military and its internal machinations. Typically, "soldiers' tales" have been written by those intelligent and articulate men of letters drafted onto the battlefield who lived to tell the story. Mr. Exum falls squarely in that category, as a classically-educated Ivy Leaguer who served as a light infantry platoon leader during combat in Central and Southwest Asia. Of course, this testimonial book is not about Mr. Exum as much as it's about the experiences his unit went through in Afghanistan and Iraq. Nonetheless, I think his Ivy League education was invaluable, because it aided him in observing, recording and thinking about the situations around him as he served on active duty. I highly recommend the book, even though I've read just a few parts so far.

Update: The AP reports that the National Endowment for the Arts (NEA) has launched its program of writing workshops for American military personnel back from overseas combat duty. The hope of this project is to increase the number of soldiers, sailors, airmen and Marines who decide to tell their story in print, so that we all may learn about their experience. A secondary -- but also very important -- goal is to assist servicemembers with their transition back to society by enabling them to tell people about their experiences. I suspect we'll see more first-person accounts of war in the future as a result of this program.

[Note: purchasing this book from Amazon.Com through my links on this site returns a small portion of the book cost to me in Amazon.Com credit. I use that credit at the end of each quarter to buy new books of interest in the field. (I chose this mode of payment from Amazon because it made the most sense for me.) In theory, reading those books helps me to write better analysis. Accordingly, your purchase of books through my Amazon.Com links contributes to the long-term quality of this site — at the same cost to you (the consumer) as if you had ordered the book on your own from the online bookseller. So please consider supporting this site by buying books (or other items) from Amazon.Com using the links I provide on the left sidebar. Thanks.]

Friday, June 11, 2004

"I hope history finds their sacrifices worth it."
Tom Ricks, who covers the military for the Washington Post and is regarded as one of the best reporters in the field, has an exceptional essay on the op-ed page of today's Post regarding the casualties in Iraq. It's exceptional for two reasons: first, that a news reporter like Mr. Ricks would write an opinionated essay ; and second, it makes a very powerful point. The essay discusses the incredibly sterile Defense Department press releases used to publish the deaths of military personnel overseas (see this example), and why he continues to read them.
In other conflicts I've covered -- Somalia, Bosnia, Haiti -- the death notices were fewer or came in bursts and stopped after a few weeks or months. Now the notices have gone on for more than a year, providing a continual but uneven drumbeat.

There have been lots lately. I read them all. Even on the busiest of days, when I am on deadline writing an article, I pause when an e-mail pops up on my screen with the subject line "DoD Identifies Army Casualty."

I do this partly for my job, tracking the casualties to maintain a sense of where the fighting is hot. I also look to see if the person was from Virginia, Maryland or the District, so I can let The Post's Metro section know if it needs to do a story.

But I read them as much for personal reasons. In 15 years of covering the military, I've interviewed thousands of soldiers. So, with that feeling of being suspended at the top of a roller coaster just before it plummets, I look to see if I knew the soldier or his unit, especially from my time knocking around Iraq with the 1st Armored Division, the 1st Infantry Division and other outfits. I keep my fingers crossed: So far, no one I've interviewed during several "embedded" reporting trips has appeared in the KIA notices. But there frequently are losses from brigades and battalions I've spent time with in Baghdad, Baqubah and Baiji and outside Najaf.

I also do it because I feel I owe it to each soldier to pause and read this short notice of his or her passing. It isn't much to ask.
Read the whole essay.

Mr. Ricks is regarded as the dean of the reporters who cover the military. He has won a Pulitzer Prize for his past work, and he is well respected by people inside and outside of the defense establishment. In many ways, I think his prestige equals that of any broadcast news anchor today. So, the analogy occurred to me while I was reading this: is this the equivalent of Walter Cronkite's change of opinion regarding Vietnam a generation ago? What effect will this essay have on the defense establishment, if any? If moderate reporters like Tom Ricks, writing for centrist newspapers like the Post, are openly questioning the mission in Iraq, what does that signal?
Comparing uses for man's best friend
Full disclosure: I am a dog person. I recently adopted a Rhodesian Ridgeback mix named Peet (after the coffee) from an animal rescue group, and he's now almost 2 years old. Peet's a great dog, although he can be somewhat challenging at times because of his strength and occasional stubbornness (like father, like son).

So, I was somewhat heartened by this story on the front page of Friday's Washington Post, which talked about some new research that shows how dogs may be able to understand a larger vocabulary than previously thought. (Also see this article in today's LA Times.) At last — there's home for teaching Peet commands like "off", "leave it", and "stop barking at the newspaper delivery man at 4 a.m." The story reports on the research conducted on Rico - a border collie kept as a house pet in Germany, with some very interesting results.
A series of careful studies concluded that the energetic German house dog has a stunningly large vocabulary of about 200 words and can even do something scientists thought only humans could do: figure out by the process of elimination that a sound he has never heard before must be the name of a toy he has never seen before.

That feat, described in today's issue of the journal Science, suggests that dog owners who claim their pets understand what they are saying and are trying to respond may have been right all along.

"Maybe this is the Albert Einstein of dogs. Or maybe this is something that other dogs can do, too," said Julia Fischer, a biologist at the Max Planck Institute for Evolutionary Anthropology in Leipzig, Germany, who helped test Rico. "We just don't know. We need to find out."

While many species can be trained to recognize the names of objects, what makes Rico unusual is that he knows so many words, can puzzle out the names of new objects on the first try and weeks later is surprisingly good at remembering what he learned, the researchers said.

"This is an extremely provocative paper," said Robert Seyfarth, a University of Pennsylvania psychologist who studies monkey behavior and communication. "Dog owners will say a lot of things about their dogs. The question is always, 'Are dogs really as smart as they think they are?' This says they might be."
Unfortunately, this is not the only news story about canines on the front page of today's Post. Another A1 story details the use of dogs by military personnel at Abu Ghraib prison, with some disturbing photographs to substantiate the reporting. Like most of the Abu Ghraib stories, this one disgusts me.
U.S. intelligence personnel ordered military dog handlers at the Abu Ghraib prison in Iraq to use unmuzzled dogs to frighten and intimidate detainees during interrogations late last year, a plan approved by the highest-ranking military intelligence officer at the facility, according to sworn statements the handlers provided to military investigators.

A military intelligence interrogator also told investigators that two dog handlers at Abu Ghraib were "having a contest" to see how many detainees they could make involuntarily urinate out of fear of the dogs, according to the previously undisclosed statements obtained by The Washington Post.

The statements by the dog handlers provide the clearest indication yet that military intelligence personnel were deeply involved in tactics later deemed by a U.S. Army general to be "sadistic, blatant and wanton criminal abuses."
Do the stories have anything in common? Surprisingly, the answer may be yes. First, dogs appear to be incredible learning creatures. (This should be no surprise to other dog people whose animals learn how to open doors, find the way home, or other fun things without any special training.) In almost any given environment, given appropriate stimulation, dogs will learn behavior just as Pavlov's proverbial dogs did. (Jon Katz has a good essay in Slate on this point.) That is true when dogs are learning vocabulary, and it is also true when dogs are learning sadistic behavior such as that evidenced at Abu Ghraib. I wish, for the dogs' sake and for ours, that they had some way to differentiate between the two.

The second common feature of the stories is that dogs tend to reflect the humans they are closest too, for better or worse. This is really a function of dogs' learning ability, but it's more of an empathetic learning ability than a cognitive one. Again, this will come as no surprise to any dog person. For Rico and Peet, this is probably a good thing, since it results in a pet who is able to match our moods and modify his temperament to live among humans. For the dogs at Abu Ghraib, this is a bad thing. Unfortunately for the dogs, the humans there working as intelligence officers and MPs acted in an extremely immoral, sadistic and disgusting way towards the prisoners they held in captivity. The dogs couldn't help but sponge up some of this behavior too, learning from their masters how to attack and hate the Iraqi prisoners. And so, we have an unfortunate example of dogs using their learning capabilities for evil conduct.

This latest news from the prison is quite unfortunate, in my opinion. Setting aside the impact on the dogs, it may lessen support within the military for the continued use of military working dogs generally. That would be a shame. I worked with MWDs extensively in Korea, where their keen sense of smell was a great help on the perimeter when trying to detect opposing forces during training or South Korean "slicky boys" trying to steal American equipment. They also have great utility in the area of drug and bomb detection. The bottom line is that dogs work well when humans work well. If we train the people to act in moral and decent ways, then I think we can expect the dogs to follow.

Update: David Adesnik at Oxblog noticed the same juxtaposition of K-9 stories in today's WP that I did, with roughly the same conclusion. However, he puts it much more elegantly, thanks to his dry Oxford wit:
DOGS IN THE NEWS: The good news is that dogs are much smarter than we thought. The bad news is that military intelligence officers explicitly authorized the use of dogs to intimidate prisoners at Abu Ghraib.

So I guess President Bush has two options: One, to blame the dogs at Abu Ghraib for not knowing better, since they're so smart. Two, to stop pretending that what happened at Abu Ghraib was the responsibility of just a few soldiers with a sadistic side.

Thursday, June 10, 2004

"G.I. Woe" author recognized with Livingston Award
Please join me in congratulating Nick Confessore, an editor at The Washington Monthly, whose prescient article "G.I. Woe" on the problem of military overstretch was just picked as the 2003 Livingston Award winner for national news reporting. In my opinion, this was an outstanding article that was far ahead of its time — it predicted many of today's military manpower problems with amazing fidelity for an article written in January and February of 2003. On a personal note, I've also had Nick edit my work for the Washington Monthly, and I think he's an exceptional journalist. I'm glad to see Nick getting the recognition he so clearly deserves for a job well done.
DoJ initiates CONPLAN for SCOTUS defeats
Michael Isikoff and Mark Hosenball have an amazing report in Newsweek (available now at MSNBC.Com) on the work being done by the Justice Department in anticipation of major defeats in the three terrorism cases now before the Supreme Court. (A "CONPLAN" is military planner jargon for a contingency plan.) The DC grapevine that includes former Supreme Court law clerks, Solicitor General attorneys, law professors and pundits is abuzz that the Court is about to hand the Bush administration stunning setbacks in all three cases, sharply curtailing the Executive Branch's power to act with unfettered discretion pursuant to what it sees as its Constitutional wartime authority.

Most significantly, prosecutors are rushing to put together a criminal case against alleged enemy combatant Jose Padilla, because it's thought that the Court will strike down the White House's legal artifice enabling his detention as an enemy combatant. Ironically, this news comes on the 2-year anniversary of Mr. Padilla's designation as an enemy combatant by President Bush, which occurred on June 9, 2002.
June 9 - Justice Department lawyers, fearing a crushing defeat before the U.S. Supreme Court in the next few weeks, are scrambling to develop a conventional criminal case against "enemy combatant" Jose Padilla that would charge him with providing "material support" to Al Qaeda, NEWSWEEK has learned.

The prospective case against Padilla would rely in part on material seized by the FBI in Afghanistan—principally an Al Qaeda "new applicant form" that, authorities said, the former Chicago gang member filled out in July 2000 to enter a terrorist training camp run by Osama bin Laden's organization.

But officials acknowledge that the charges could well be difficult to bring and that none of Padilla's admissions to interrogators—including an apparent confession that he met with top Al Qaeda leader Abu Zubaydah and agreed to undertake a terror mission—would ever be admissible in court. [See this Slate article explaining why that is the case.]

Even more significant, administration officials now concede that the principal claim they have been making about Padilla ever since his detention—that he was dispatched to the United States for the specific purpose of setting off a radiological "dirty bomb"—has turned out to be wrong and most likely can never be used against him in court.

The reassessments of Padilla come amid a growing sense of gloom within Justice that the Supreme Court is likely to rule decisively against the Bush administration not just in the Padilla case but in two other pivotal cases in the war on terror: one involving the detention of another "enemy combatant," Yasir [Hamdi], and another involving the treatment of Al Qaeda and Taliban prisoners at Guantanamo Bay, Cuba. In the Padilla and Hamdi cases, the administration is arguing it has the right to hold the two U.S. citizens indefinitely without trial. In the Guantanamo case, the administration argues that foreign nationals being interrogated there there do not have the right to challenge their detention in federal courts.

Lawyers within the Justice Department are now bracing for defeat in both the enemy-combatant and Guantanamo cases, both of which are expected to be decided before the Supreme Court ends its term at the end of the month, according to one conservative and politically well-connected lawyer. "They are 99 percent certain they are going to lose," said the lawyer, who asked not to be identified. "It's a very sobering realization."
More to follow...

Wednesday, June 9, 2004

Original sources - WSJ posts DoD's smoking legal memo
The Wall Street Journal has uploaded the text of the now infamous April 2003 Defense Department memo regarding legal liability for torture. It should be available to both subscribers and non-subscribers. I quickly scanned it and found some really interesting passages, but I don't have time to write on them. Suffice to say, check out FN 14 on page 17 of the document — it's a stunner. Then compare the memo's discussions of jurisdiction with the administration's position before the Supreme Court in Al-Odah v. United States and Rasul v. Bush. More to follow...

Update I: Before the Senate Judiciary Committee yesterday, Attorney General John Ashcroft denied knowledge of this memo or other memoranda from his department (as reported by the Washington Post) which, inter alia, tended to legally justify and legitimize the conduct of torture. Here are some of the notable quotes and exchanges from the NYT story:
President Bush [has] "made no order that would require or direct the violation" [of international or domestic laws proscribing torture]

* * *
"First of all," Mr. Ashcroft said, "this administration opposes torture," adding that the "kind of atrocities displayed in the photographs are being prosecuted by this administration."

* * *
Senator Joseph R. Biden Jr., Democrat of Delaware, in a heated exchange with Mr. Ashcroft, asked him if he believed torture was ever justified. When he first declined to answer, Mr. Biden accused him of being evasive, and Mr. Ashcroft replied: "You know I condemn torture. I don't think it's productive, let alone justified."

But Mr. Biden persisted, saying: "There's a reason why we sign these treaties: to protect my son in the military. That's why we have these treaties, so when Americans are captured they are not tortured. That's the reason in case anybody forgets it."
The Washington Post story adds a few more interesting quotes to the fray:
White House press secretary Scott McClellan said yesterday that Bush set broad guidelines, rather than dealing with specific techniques. "While we will seek to gather intelligence from al Qaeda terrorists who seek to inflict mass harm on the American people, the president expects that we do so in a way that is consistent with our laws," McClellan said.

White House Counsel Alberto R. Gonzales said in a May 21 interview with The Washington Post: "Anytime a discussion came up about interrogations with the president, . . . the directive was, 'Make sure it is lawful. Make sure it meets all of our obligations under the Constitution, U.S. federal statutes and applicable treaties.' "
Analysis: That's all very interesting — and it's what we want to hear. But these statements are directly contradicted by the plain language of the memoranda that have now been made public. The DoD memo, in particular, provides a cookbook approach for illegal conduct. It explains how military personnel can use torture techniques because the U.S. Defense Department and Justice Department has a more narrow definition of "torture" than our enemies, our allies, or even our own State Department. The memo then explains how customary international law can be ignored by executive fiat — and in self-referential fashion, it cites to an opinion of the Justice Department's Office of Legal Counsel for that proposition. The list goes on and on... The fact of the matter is that the statements from the AG and the White House don't hold water when compared to these memos.

Update II: U.Miami law professor Michael Froomkin has an exceptional and exhaustive analysis of the memo on his weblog that deserves a look. I highly recommend his analysis, which looks spot-on to me.

Update III: I have some more detailed analysis of the memo in this Slate article titled "Cooking Up Excuses With the Pentagon".

Update IV: Also check out this lengthy analysis by David S. Finley on the matter.

Tuesday, June 8, 2004

General: every soldier now has proper body armor
Gen. Paul Kern, chief of the Army's Materiel Command, said yesterday that every soldier in harm's way today has been issued a set of Interceptor body armor (or its equivalent), thus ending concerns that soldiers and Marines were being sent into combat with substandard Vietnam-era flak vests.
As late as March, soldiers headed for Iraq were still buying their own body armor despite assurances from the military that the equipment would be available before they were in harm's way.

"Everyone who is in theater today has been issued a protective vest," Kern said.

* * *
Kern also was asked about Humvees, the basic troop transport that have often been the targets of roadside bombs. He said 7,000 to 8,000 of the 12,000 Humvees in Iraq have been fitted with armor packages to give them greater protection.
Analysis: This is good news — we should laud the efforts of the defense industry to surge produce this equipment and get it to the field. The Pentagon planned a phased procurement of this gear in the late 1990s, and it took some effort to push this stuff through the system. Yet, we shouldn't be too self-congratulatory. In the interim, scores (or even hundreds) of soldiers were grievously wounded because they lacked the best body armor for combat. Many more suffered grievous wounds because they went into an IED and RPG laden threat environment without vehicle armor. Of those, some died. Simply put, we did not adequately anticipate the threats to our fighting men and women and plan for these threats by acquiring the resources before war to do the job right. The cost of this mistake was paid by our soldiers and Marines in blood.

I'm glad that our troops now have the life-saving body armor they need, and that more of them now have vehicle armor. But the military's procurement community needs to learn from this experience. One area where I think improvement is necessary is in reaction time. This body/vehicle armor requirement was ostensibly identified in March/April 2003, when thousands of soldiers crossed the Line of Departure into Iraq with substandard body armor. This unmet requirement was subsequently highlighted after major combat operations ended. Most active-duty combat troops had the new armor, but active-duty and reserve support troosp did not. The non-contiguous and asymmetric nature of the insurgency has put those support troops in harm's way just as much as the combat troops, thus, the need for them to have advanced body armor too. It has taken until now — more than a year — to fully equip the force with body armor. That is an incredibly slow OODA loop for the procurement system, and it must be fixed. In effect, this example tells our enemies that we will require at least a year to develop, procure and field any counter-measure to their tactics. Given the agility, simplicity and lethal effectiveness of our enemy in Iraq, we simply can't afford a procurement loop that is this slow.

Part of the problem owes to procurement regulations which limit off-the-shelf buying, and add red tape in order to foster accountability. A bigger issue is the consolidation of the defense industry which started in the 1990s, and which has dramatically cut the surplus capacity that this industry might have once used to surge production of any given item. Another piece is the failure of the military's logistics community to anticipate and procure this item ahead of time. And a final piece is the failure of the Pentagon's leadership to go to Congress to get money for this as soon as the requirement was identified, or at least to get emergency authority to pull from other appropriations as necessary. This problem is too complex to be fixed overnight, but it must be fixed nonetheless before the next evolution by the enemy catches our troops unequipped and unprepared.

Update I: One of my readers passes on the text of an amendment to the 2005 National Defense Authorization Act (H.R. 4200), which would authorize the Pentagon to reimburse soldiers for the out-of-pocket purchase of body armor while in a combat zone.
(a) Reimbursement Authorized- The Secretary of Defense may reimburse a member of the Armed Forces for the cost of protective body armor purchased by the member, or by another person on behalf of the member, for use by the member while deployed in connection with Operation Noble Eagle, Operation Enduring Freedom, or Operation Iraqi Freedom if the member was not issued protective body armor before the member became engaged in operations in areas or situations described in section 310(a)(2) of title 37, United States Code.

(b) Duration of Authority- Reimbursement may be provided under subsection (a) for protective body armor purchased during the period beginning on September 11, 2001, and ending on December 31, 2003. Not later than 60 days after the date of the enactment of this Act, the Secretary shall implement regulations to expedite the provision of such reimbursement.
Note that this is discretionary reimbursement authority — the SecDef "may" payback soldiers. As I understand it, that's because of a Congressional rule that requires any directed spending (outside the original budget request) to be scored by the Congressional Budget Office. But given the political climate on this issue, I think the Pentagon will likely implement this authority if it makes it into the final NDAA. I can only imagine the protest from veterans' groups and military families if body-armor reimbursement chits were denied.

Monday, June 7, 2004

Another smoking memo
Defense Department legal memorandum provided a roadmap for getting away with torture.

Jess Bravin reports in Monday's Wall Street Journal (subscription required) about a classified legal memorandum prepared by the Pentagon's Office of General Counsel that appears designed to find every legal workaround possible to justify coercive interrogation and torture at Guantanamo Bay. This report comes in the wake of disclosures about other memoranda — one written in early 2002 by UC Berkeley law professor John Yoo while with the Justice Department's Office of Legal Counsel, and a second written by White House Counsel Alberto Gonzales — justifying the White House's overall Guantanamo Bay plan. This latest memo, signed in April 2003, goes much further than those though — it specifically authorizes the use of torture tactics, up to and including those which may result in the death of a detainee. (Update: A copy of the story can be viewed here by non-WSJ subscribers.)
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, 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."

* * *
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.

A military official who helped prepare the report said it came after frustrated Guantanamo interrogators had begun trying unorthodox methods on recalcitrant prisoners. "We'd been at this for a year-plus and got nothing out of them" so officials concluded "we need to have a less-cramped view of what torture is and is not."

* * *
The lawyers concluded that the Torture Statute applied to Afghanistan but not Guantanamo, because the latter lies within the "special maritime and territorial jurisdiction of the United States, and accordingly is within the United States" when applying a law that regulates only government conduct abroad.

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."
Analysis: Normally, I would say that there is a fine line separating legal advice on how to stay within the law, and legal advice on how to avoid prosecution for breaking the law. DoD and DoJ lawyers often provide this first kind of sensitive legal advice to top decisionmakers in the Executive Branch (regardless of administration) who want to affirm the legality of their actions. Often times, memoranda on these topics can be seen both ways, depending on your perspective. I tend to think that the Yoo memorandum and Gonzales memorandum leaned more heavily towards providing advice about how to stay (barely) within the bounds of the law — not how to break the law and get away with it. But this DoD memo appears to be quite the opposite. It is, quite literally, a cookbook approach for illegal government conduct. This memorandum lays out the substantive law on torture and how to avoid it. It then goes on to discuss the procedural mechanisms with which torture is normally prosecuted, and techniques for avoiding those traps. I have not seen the text of the memo, but from this report, it does not appear that it advises American personnel to comply with international or domestic law. It merely tells them how to avoid it. That is dangerous legal advice.

Second, I'd like to counterpose one other key point from the memo against an excerpt from the U.S. Constitution. Compare the following line from the WSJ story:
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."
with this passage from Art. II, Sec. 3 of the U.S. Constitution, regarding Presidential power:
Section 3.

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The italicized passage is commonly called the "take care" clause by Constitutional Law scholars. It is not a permissive grant of power — it is an affirmative duty to enforce the laws and ensure that subordinate officers of the government do the same. It is the basis for Presidential command and control over the executive branch, and it has been invoked on many occasions to justify prosecution of law violation within the branch. President Truman tried to invoke this clause, in conjunction with his broader power as Commander-in-Chief, to justify the emergency seizure of steel mills during a labor stoppage during the Korean War. The Supreme Court sharply rebuked him, saying that he lacked the Constitutional authority to do so. (See Youngstown v. Sawyer, aka The Steel Seizure Case). I have read a fair amount on this particular area of Constitutional Law, and think the DoD memo gets it wrong. I am not aware of any legal authority which supports the proposition that the President has inherent power to set aside the laws when he deems it necessary. If anything, the opposite is true, according to Supreme Court precedent and treatises on Constitutional Law by scholars such as Joseph Story. Even in wartime, the President's authority to act is limited by the Constitution. There is no general Presidential power to nullify the laws of the United States, nor the laws of war which have been codified in treaties. Advice to the contrary is wrong, and any actions which follow this advice are probably unlawful as well.

More to follow...

Update I: An extremely learned reader of mine wrote to remind me that the U.S. Constitution isn't the only authority which rejects the idea of executive to set aside the law. This idea goes back even further, to the British legal tradition. Ironically, the power now claimed by the Defense Department (and by extension, the White House) was rejected for the King in the late 17th Century. Here's what my reader had to say:
The question of whether "authority to set aside the laws is 'inherent in the President'" is surely settled in the negative by the "take care" clause and the Steel Seizure case; the general principle, however, was decided much earlier, by the Glorious Revolution of 1688. In English constitutional history, the kind of power claimed by the DOD lawyers is known as a "dispensing power" and as used by James II to justify exempting Sir Edward Hales from the Test Acts. In Godden v. Hales (1686), the Lord Chief Justice of England found for Hales on the basis of the dispensing power; the decision was condemned by James' opponents. Two years later, the Petition of the Seven Bishops was sent to the king in opposition to the dispensing power. The bishops were charged with libel and acquitted in June 1688; by December, William of Orange had landed
in England and James had fled to France.
Update II: The New York Times and Washington Post have follow-up articles in Tuesday's paper on this story. The WP story in particular is interesting because it reveals additional details of additional memoranda circulated in the executive branch to justify this kind of conduct. Jess Bravin and Greg Jaffe also have a follow-up story of their own in Tuesday's Wall Street Journal (subscription required). The WSJ story has this interesting tidbit:
"There's a divide within the military," said an officer who recently retired from a position with the Joint Chiefs of Staff. "There's a group that's more willing to take the more 'creative' approach of the [secretary of defense] and the politicos, and then the more conservative" officers who want to hew more closely to the traditional understanding of military and international law, the retired officer said. He himself is among the conservatives. "There's a term floating around called the 'revolt of the professionals,' " this officer said.

A Pentagon spokesman acknowledged there was some disagreement in preparing the policy report over what interrogation techniques should be permitted at the Guantanamo detention facility. The group working on the report included top uniformed lawyers, Pentagon policy officials and intelligence officials. "I am sure that in any broad group like that you will have dissenting opinions that go to the left and to the right," said Bryan Whitman, the spokesman. Mr. Whitman said he didn't know whether the disagreements broke down along military and civilian Bush administration lines.
Indeed, this is not the first time I've heard this from within the Pentagon. This issue came up when Secretary Rumsfeld tampered with the Army's TPFDD for Iraq, disregarding the logistics and operations professionals who told him what forces ought to be put on the ground and in what sequence. The result was a logistical clusterf**k of the first magnitude in Kuwait before and during the war. The same problem has erupted during discussions on end strength, procurement programs, reserve mobilizations, and many other topics. Rumsfeld defenders say that he's merely exercise tight civilian control over a department that needs that. But I'm not so sure. I think he's starting to pull the leash too hard, and in a way that makes the Pentagon less accountable because his decisionmaking process is so insular.