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.Analysis
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."
: 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:
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...
: 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 Update II
in England and James had fled to France.
: 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.