(Gary Farber's home blog is Amygdala.)
WSJ is the Wall Street Journal, of course, and here is the full article. (Via Ogged.)
I'm going to highlight by quoting a number of the most salient 'graphs, and then present the whole article below the fold.
"Bush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department.The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in late 2002 that with conventional methods they weren't getting enough information from prisoners.
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."
It is, I daresay, unusual to see U. S. lawyers arguing that the defendents at Nuremberg were, in fact, innocent in law, and that "I was only following orders" is, indeed, a proper and just defense.
[...]It was my understanding that, with the passing of Watergate, and the resignation of the President of the United States, after his attempt to assert the doctrine that "if the President does it, it's legal," that said doctrine had been swept into the ash-bin of history.A Pentagon official said some military lawyers involved objected to some of the proposed interrogation methods as "different than what our people had been trained to do under the Geneva Conventions," but those lawyers ultimately signed on to the final report in April 2003, shortly after the war in Iraq began. The Journal hasn't seen the full final report, but people familiar with it say there were few substantial changes in legal analysis between the draft and final versions. A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture -- to assert "presidential power at its absolute apex," the lawyer said.
[...]
Following scattered reports last year of harsh interrogation techniques used by the U.S. overseas, Sen. Patrick Leahy, a Vermont Democrat, wrote to National Security Adviser Condoleezza Rice asking for clarification. The response came in June 2003 from Mr. Haynes, who wrote that the U.S. was obliged to conduct interrogations "consistent with" the 1994 international Convention Against Torture and the federal Torture Statute enacted to implement the convention outside the U.S.
The U.S. "does not permit, tolerate or condone any such torture by its employees under any circumstances," Mr. Haynes wrote. The U.S. also followed its legal duty, required by the torture convention, "to prevent other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture," he wrote.
The U.S. position is that domestic criminal laws and the Constitution's prohibition of cruel and unusual punishments already met the Convention Against Torture's requirements within U.S. territory.
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."[...]
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. It concluded that neither the president nor anyone following his instructions was bound by the federal Torture Statute, which makes it a crime for Americans working for the government overseas to commit or attempt torture, defined as any act intended to "inflict severe physical or mental pain or suffering." Punishment is up to 20 years imprisonment, or a death sentence or life imprisonment if the victim dies. "In order to respect the president's inherent constitutional authority to manage a military campaign ... (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority," the report asserted. (The parenthetical comment is in the original document.) The Justice Department "concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president's constitutional power," the report said. 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 in purpose and energy in action that characterize the presidency rather than Congress."
[...]
Likewise, the lawyers found that "constitutional principles" make it impossible to "punish officials for aiding the president in exercising his exclusive constitutional authorities" and neither Congress nor the courts could "require or implement the prosecution of such an individual."
It appears not.
In our Republic, it has long been doctrine that the President is not above the law. It appears that there are those in the administration who may not agree.
Phil Carter also usefully analyzes and comments.
Full text of the article appears below. Consider and discuss.
Pentagon Report Set Framework For Use of TortureSecurity or Legal Factors Could Trump Restrictions, Memo to Rumsfeld Argued
by Jess Bravin
Monday, June 7, 2004
Wall Street JournalBush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department.
The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in late 2002 that with conventional methods they weren't getting enough information from prisoners.
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."
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.
A Pentagon official said some military lawyers involved objected to some of the proposed interrogation methods as "different than what our people had been trained to do under the Geneva Conventions," but those lawyers ultimately signed on to the final report in April 2003, shortly after the war in Iraq began. The Journal hasn't seen the full final report, but people familiar with it say there were few substantial changes in legal analysis between the draft and final versions.
A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture -- to assert "presidential power at its absolute apex," the lawyer said. Although career military lawyers were uncomfortable with that conclusion, the military lawyer said they focused their efforts on reining in the more extreme interrogation methods, rather than challenging the constitutional powers that administration lawyers were saying President Bush could claim.
The Pentagon disclosed last month that the working group had been assembled to review interrogation policies after intelligence officials in Guantanamo reported frustration in extracting information from prisoners. At a news conference last week, Gen. James T. Hill, who oversees the offshore prison at Guantanamo as head of the U.S. Southern Command, said the working group sought to identify "what is legal and consistent with not only Geneva [but] ... what is right for our soldiers." He said Guantanamo is "a professional, humane detention and interrogation operation ... bounded by law and guided by the American spirit."
Gen. Hill said Mr. Rumsfeld gave him the final set of approved interrogation techniques on April 16, 2003. Four of the methods require the defense secretary's approval, he said, and those methods had been used on two prisoners. He said interrogators had stopped short of using all the methods lawyers had approved. It remains unclear what actions U.S. officials took as a result of the legal advice.
Critics who have seen the draft report said it undercuts the administration's claims that it recognized a duty to treat prisoners humanely. The "claim that the president's commander-in-chief power includes the authority to use torture should be unheard of in this day and age," said Michael Ratner, president of the Center for Constitutional Rights, a New York advocacy group that has filed lawsuits against U.S. detention policies. "Can one imagine the reaction if those on trial for atrocities in the former Yugoslavia had tried this defense?"
Following scattered reports last year of harsh interrogation techniques used by the U.S. overseas, Sen. Patrick Leahy, a Vermont Democrat, wrote to National Security Adviser Condoleezza Rice asking for clarification. The response came in June 2003 from Mr. Haynes, who wrote that the U.S. was obliged to conduct interrogations "consistent with" the 1994 international Convention Against Torture and the federal Torture Statute enacted to implement the convention outside the U.S.
The U.S. "does not permit, tolerate or condone any such torture by its employees under any circumstances," Mr. Haynes wrote. The U.S. also followed its legal duty, required by the torture convention, "to prevent other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture," he wrote.
The U.S. position is that domestic criminal laws and the Constitution's prohibition of cruel and unusual punishments already met the Convention Against Torture's requirements within U.S. territory.
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.
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 official said, "People were trying like hell how to ratchet up the pressure," and used techniques that ranged from drawing on prisoners' bodies and placing women's underwear on prisoners heads -- a practice that later reappeared in the Abu Ghraib prison -- to telling subjects, "I'm on the line with somebody in Yemen and he's in a room with your family and a grenade that's going to pop unless you talk."
Senior officers at Guantanamo requested a "rethinking of the whole approach to defending your country when you have an enemy that does not follow the rules," the official said. Rather than license torture, this official said that the report helped rein in more "assertive" approaches.
Methods now used at Guantanamo include limiting prisoners' food, denying them clothing, subjecting them to body-cavity searches, depriving them of sleep for as much as 96 hours and shackling them in so-called stress positions, a military-intelligence official said. Although the interrogators consider the methods to be humiliating and unpleasant, they don't view them as torture, the official 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. It concluded that neither the president nor anyone following his instructions was bound by the federal Torture Statute, which makes it a crime for Americans working for the government overseas to commit or attempt torture, defined as any act intended to "inflict severe physical or mental pain or suffering." Punishment is up to 20 years imprisonment, or a death sentence or life imprisonment if the victim dies.
"In order to respect the president's inherent constitutional authority to manage a military campaign ... (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority," the report asserted. (The parenthetical comment is in the original document.) The Justice Department "concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president's constitutional power," the report said. 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 in purpose and energy in action that characterize the presidency rather than Congress."
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."
The Bush administration has argued before the Supreme Court that foreigners held at Guantanamo have no constitutional rights and can't challenge their detention in court. The Supreme Court is expected to rule on that question by month's end.
For Afghanistan and other foreign locations where the Torture Statute applies, the March 2003 report offers a narrow definition of torture and then lays out defenses that government officials could use should they be charged with committing torture, such as mistakenly relying in good faith on the advice of lawyers or experts that their actions were permissible. "Good faith may be a complete defense" to a torture charge, the report advised.
"The infliction of pain or suffering per se, 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 it "must be of such a high level of intensity that the pain is difficult for the subject to endure."
The law says torture can be caused by administering or threatening to administer "mind-altering substances or other procedures calculated to disrupt profoundly the sense of personality." The Bush lawyers advised, though, that it "does not preclude any and all use of drugs" and "disruption of the senses or personality alone is insufficient" to be illegal. For involuntarily administered drugs or other psychological methods, the "acts must penetrate to the core of an individual's ability to perceive the world around him," the lawyers found.
Gen. Hill said last week that the military didn't use injections or chemicals on prisoners.
After defining torture and other prohibited acts, the memo presents "legal doctrines ... that could render specific conduct, otherwise criminal, not unlawful." Foremost, the lawyers rely on the "commander-in-chief authority," concluding that "without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority" to wage war. Moreover, "any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the commander-in-chief authority in the president," the lawyers advised.
Likewise, the lawyers found that "constitutional principles" make it impossible to "punish officials for aiding the president in exercising his exclusive constitutional authorities" and neither Congress nor the courts could "require or implement the prosecution of such an individual."
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 report advised that government officials could argue that "necessity" justified the use of torture. "Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law," the lawyers wrote, citing a standard legal text, "Substantive Criminal Law" by Wayne LaFave and Austin W. Scott. "In particular, the necessity defense can justify the intentional killing of one person ... so long as the harm avoided is greater."
In addition, the report advised that torture or homicide could be justified as "self-defense," should an official "honestly believe" it was necessary to head off an imminent attack on the U.S. The self-defense doctrine generally has been asserted by individuals fending off assaults, and in 1890, the Supreme Court upheld a U.S. deputy marshal's right to shoot an assailant of Supreme Court Justice Stephen Field as involving both self-defense and defense of the nation. Citing Justice Department opinions, the report concluded that "if a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition," he could be justified "in doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network."
Mr. LaFave, a law professor at the University of Illinois, said he was unaware that the Pentagon used his textbook in preparing its legal analysis. He agreed, however, that in some cases necessity could be a defense to torture charges. "Here's a guy who knows with certainty where there's a bomb that will blow New York City to smithereens. Should we torture him? Seems to me that's an easy one," Mr. LaFave said. But he said necessity couldn't be a blanket justification for torturing prisoners because of a general fear that "the nation is in danger."
For members of the military, the report suggested that officials could escape torture convictions by arguing that they were following superior orders, since such orders "may be inferred to be lawful" and are "disobeyed at the peril of the subordinate." Examining the "superior orders" defense at the Nuremberg trials of Nazi war criminals, the Vietnam War prosecution of U.S. Army Lt. William Calley for the My Lai massacre and the current U.N. war-crimes tribunals for Rwanda and the former Yugoslavia, the report concluded it could be asserted by "U.S. armed forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful."
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."
Copyright © 2004 Dow Jones & Company, Inc .
It seems the FUBAR is much wider than we thought.
It is true that the US Senate did ratify the Convention on Torture with reservations, but those reservations classified torture as that proscribed by various provisions of the US Constitution, including the 5th and 8th Amendments. The US could have wiggled out of this, but it would have required the President to withdraw from this treaty, not rely on junior lawyers' findings. Then there's the III and IV Geneva Conventions, which proscribe torture or invasions of personal dignity, which covers this lot even for illegal combatants (i.e., we can execute spies but can't rape them). President Bush never withdrew the US from those treaties, either, a privilege extending to him under Art. II of the Constitution, but not to his lawyers.
(Irony digression: the Geneva Conventions, the Nuremberg charter, the Universal Declaration of Human Rights and the like were part of a structure of post-WWII treaties the US itself largely devised.)
Then there's the fact that no one repealed the Uniform Code of Military Justice. That is an enactment of the legislative branch (the UCMJ is 10 USC §§ 801 et seq) and forbids, among other things, rape, cruelty, maiming, &c., violation of which is a court-martial offense. Nor does the UCMJ say "except when bad guys are the victims."
Beyond that, most of the techniques the Administration tried to justify -- tormentum insomniae, stress positions etc. -- required the cooperation of custodial staff since they require days, not hours, to work, and custodial staff in the Army are MP, not MI. The MOS series 95B (MP) and 95C (MP corrections) didn't include forcible interrogation last time I looked, though the higher 95B series did include criminal interrogation -- i.e., as in a normal investigation with Miranda and due process and all that, and any duress would ruin a normal prosecution. All of what the lawyers rationalized was thus outside the soldiers' training -- not that they had adequate training, according to MG Taguba's report -- and thus the lawyers were putting our soldiers in legal harm's way.
Nor does this explain the deliberate use of sexual degradation or even rape (i.e., blunt object penetration, which seems to fit Art. 120's definition of rape).
Nor does it explain how these techniques are equally applicable to high-interest al-Qaeda prisoners and to the numerous detainees in Iraq swept up, according to the 15-6 report, for any number of offenses, some petty.
For one (civilian) lawyer involved in creating this rationale, see
http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/06/07/MNGKP721F21.DTL
about John Woo, formerly of the Bush Justice Dept and now a professor at Boalt Hall (UC Berkeley's law school) and conservative talking head on the PBS News Hour. Such Justice Dept lawyers may want to ponder the examples we made at Nuremberg of Wilhelm Frick and Hans Frank, also lawyers, who constructed various legal fictions for their government in the run-up to their war.
The Administration may have been able to get Congress or the Supreme Court to justify some of this, but it seems to have relied on lawyers' briefs. All that did was leave the soldiers involved in very deep trouble. However, under the Yamashita precedent, the chain of command also is culpable, both those who gave the orders and those who constructed the legal fictions around it. At some point it becomes, as they say, ultra vires. That's not territory any lawyer wants to enter.
People seem to be confused by the use of words like "legal" and "illegal." There are really at least two competing definitions of the word "illegal."
illegal:
1. Contrary to a set of well-known and well-defined rules backed by government power.
This is the idealistic notion of law.
This definition is no longer meaningful in the US --if it ever was -- thanks to the proliferation of so many rules that it's literally impossible to keep track of them all.
We should also note that the innocence of the 70% of the Abu Ghairab inmates did NOTHING to protect them.
2. Contrary to the wishes of people with power.
This is the realistic notion of law. People who wish to avoid being crushed would be wise to adopt this definition.
Hence, everything George Bush does is legal by definition, as long as he has the POWER.
Trent Reznor accurately characterized the situation in his song "Big Man With A Gun." I highly recommend everyone google the lyrics.
Descent into Madness
It should also be noted that there exists two competing definitions of morality:
Subjective Morality:
This is the notion that people with different fundamental values are immoral. We dislike the values of people like Hannibal Lecter and Saddam Hussein. For this reason, we label them "evil" (and vice-versa.)
Most people are unwilling to consider that the moral differences between themselves and people like Stalin are merely arbitrary aesthetic judgements. They want to believe that their values are somehow objectively superior. Often this involves the belief that some Big Man in the Sky backs their values. This Big Man is often endowed in the minds of believers with incredible (usually infinite) power to impose these values on the world. This brings us to:
Objective Morality:
This is the notion that there exists a moral order intrinsic to the universe. People who go along with this moral order will be rewarded, and those who act in opposition will be punished.
We can use empirical observation and the scientific method to attempt to derive what the moral order of the universe is, but this way lies madness. For example, it becomes immediately apparent that people like Holocaust victims, Kulaks (my relatives), Nurenberg defendants, Pol Pot victims, etc. are "objectively immoral." Similarly, many successful mass murderers like Stalin clearly are objectively saints, even demigods, since the universe richly rewarded them for their deeds.
We can derive that the principle sin against "objective morality" is WEAKNESS, whereas the principle virtue is STRENGTH. One can atone somewhat for one's weakness through abject groveling at the feet of the powerful.
I much prefer subjective morality.
I once heard that the Army Judge Advocate General School, at least in past years, used "Breaker Morant" as a training film. The moral there, of course, is that "I followed orders" is no defense. The film's greater moral is that, even if others got away with it, you may be the soldier that the authorities want to make an example of.
It's worth remembering that everybody in the military, and their Commander in Chief, swear an oath to preserve, protect and defend the US Constitution. That Constitution includes all military law enacted by Congress (i.e., the UCMJ, under Art. I, §§ 1 & 8) and all treaties as the "supreme law of the land" under Art. VI's supremacy clause.
I agree that our dear leader may have the power to disregard the law, but that's not how it was confided to him. It's a good way to spend one's declining years like Robert McNamara, trying to explain himself, or like Gen. Pinochet, ducking prosecutors.
“If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
—Justice Louis Brandeis, dissenting, Olmstead et al v. U.S., 277 US 485 (1928)
Maybe this report is an analysis that was later rejected. Even so, it's disturbing that if it was even considered.
Found this comment on Kevin Drum's site:
Links:
Graham Lester
Letter
Again, it is the issue of claiming the moral high ground and then lying about it.
All this spin makes one dizzy! :-(
>>It's worth remembering that everybody in the military, and their Commander in Chief, swear an oath to preserve, protect and defend the US Constitution. That Constitution includes all military law enacted by Congress (i.e., the UCMJ, under Art. I, §§ 1 & 8) and all treaties as the "supreme law of the land" under Art. VI's supremacy clause.
This has got to be the funniest thing I've read all week. If these Oaths had any meaning, our military would have forced the President to get declarations of war against the targets of the last N "police actions" before allowing themselves to be deployed.
In practice, obedience to authority will trump oaths to the constitution almost every time. The soldiers will do what the Big Men tell them to, whatever that may entail.
Lurker, I don't know any reason why a letter to Congress purporting to describe official policy has any legal force. I'm not a lawyer, but I just don't see such a statement as binding on anyone.
I see it as a lie, probably deliberate, probably illegally submiiting false material to Congress, but that's another question.
Isn't it remarkable that the torture program authorized in the WSJ memo took place? That fits my definition of putting it into effect.
The Constitution requires the President to "execute" the laws. Hitherto this was interpreted in the sense of "perform", but Bush has taken advantage of textual ambiguity to interpret it as "termination with extreme prejudice".
"The soldiers will do what the Big Men tell them to, whatever that may entail."
I think you'll find, if you bother to speak to any, that a great many members of our armed forces, serving, Reserve, retired, or of whatever status, would find that quite offensive, and in error, and rightly so.
Specialist Joseph Darby would find it particularly offensive, and in error.
AJL,
I was just trying to further the conversation with the only real data I could find (the letter). Looking around the Web and Blogosphere there seems to be a dearth of substantive information on this issue.
Isn't it obvious that a letter signed by the General Counsel of the DOD carries much more weight than any draft report making the rounds? It seems so to me, but I'm not a lawyer either. On what basis do you assert that Mr. Haynes's letter is a lie? Wouldn't an accomplished lawyer know better than to lie in an official government document, and then sign it? A more better conspiracy theory would assume that he is the one being lied to.
Obviously, the draft reports cited by the WSJ are disturbing, but there seems to be few facts to say they were implemented as actual policy. The Abu Ghraib incidents should certainly be investigated fully, and they may ultimately provide such proof; but, it's starting to look like the DOD's objectively can be validly questioned. What other options are available to pursue these investigations?
"Isn't it obvious that a letter signed by the General Counsel of the DOD carries much more weight than any draft report making the rounds?"
It's not obvious. It may be true, but it's not obvious.
If the report isn't just a "draft," but is policy -- and I'm not asserting anything beyond "if" -- and the policy is that anything the President authorizes is legal, then the President can authorize false public statements by anyone, and a letter signed by the GC of DoD, or anyone else, is potentially meaningless.
I don't know what the truth is. But it's not yet obvious.
To TJ Madison: Well, the oath was the first thing out of our Dear Leader's mouth on Jan. 20, 2001. If that was a lie, then we need to consider anything that follows in that light.
Certainly the military isn't in a position to interpret orders. But if they're going to obey any strongman that comes along, then we're in Saddam's school of business, not ours, and we're in very deep trouble. "obedience to authority will trump oaths to the constitution almost every time" is not the Army I served in.
If the military now thinks, as Pfc. England's lawyers say, that following illegal orders is going to be a defense, they've got another think coming. "The soldiers will do what the Big Men tell them to whatever that may entail." (How Idi Amin). What it may entail is prosecution on capital charges.
>>I think you'll find, if you bother to speak to any, that a great many members of our armed forces, serving, Reserve, retired, or of whatever status, would find that quite offensive, and in error, and rightly so.
Offensive it may be, but until some soldiers stand up against their illegal deployment orders, I don't see how it's in error.
(Note that here I'm addressing the LEGALITY of the "police actions", not the WISDOM or NECESSITY.)
This is especially true for the Kosovo intervention, where the Congress voted against even the flimsy authorization of force resolution. Members of the military whose first loyalty was to the Constitution would have refused to go. But to my knowledge they all went.
In some ways the Iraq situation was worse, since the Congress passed a clearly unconstitutional resolution delegating the decision on whether war would occur to the President. Nobody blinked, and all the soldiers went. It's the military's complicity in this sort of BS that makes the executive overreach associated with extrajudicial detention/torture possible.
It's all a simple matter of selection pressure. Elements who might question the legitimacy or constitutionality of their orders are systematically weeded out of the system. Soldiers who can rationalize any order as being legal and constitutional are selected into the system. Resisting an unconsitutional or illegal order carries much greater immediate costs and risks than obeying such an order. It's in every serviceman's individual self-interest to just go along.
>>To TJ Madison: Well, the oath was the first thing out of our Dear Leader's mouth on Jan. 20, 2001. If that was a lie, then we need to consider anything that follows in that light.
Yes. This is the problem exactly. Actually, the oathbreaking and overall gutlessness of Congress is probably a worse problem.
>>Certainly the military isn't in a position to interpret orders. But if they're going to obey any strongman that comes along, then we're in Saddam's school of business, not ours, and we're in very deep trouble. "obedience to authority will trump oaths to the constitution almost every time" is not the Army I served in.
The men in the Wehrmacht were not demons -- they were ordinary patriotic Germans following orders. They were well trained, and fought bravely and to utter destruction. Surely if they had been aware of the corruption of their political leadership they would have refused to fight, yes?
Remember that 65% of untrained civilians will torture an innocent person to death if asked to by an authority figure. It would be unreasonable to expect this figure to be lower in the armed forces, where obedience to authority is strongly conditioned.
>>Specialist Joseph Darby would find it particularly offensive, and in error.
Military training is not perfect, and at the lower echelons the selection pressure has not yet weeded out politically unreliable people. This said, in a just world Spc. Darby would immediately be advanced two pay grades and be awarded a silver star.
While we're on the topic of heroic disobedience, here's some people who should not be forgotten:
On June 11, 1942, German army captain Michael Kitzelmann ends in Orel. Kitzelmann, who won an Iron Cross Second Class for bravery, was court-martialed for speaking out against atrocities being committed on the eastern front. "If these criminals should win," he told his fellow officers, "I would have no wish to live any longer." Kitzelmann's wish was granted: he was shot by a firing squad that day.
And of course Hugh Thompson. If anyone deserves a CMH it's him:
http://www.cbsnews.com/stories/2004/03/25/eveningnews/main608686.shtml
The points T.J. makes are reasonable. Legend holds that the Prussian Crown Prince, at the battle of Königgrätz in 1866, said, "His Majesty made you a Major because he thought you knew when to disobey orders." Apparently, from what T.J. has indicated, the fact that our soldiers could think and act on their own may be a reason why they defeated the Wehrmacht almost 80 years later.
(One example of this, in past Command & General Staff Course material: When the Germans launched the Bulge offensive they assumed US forces would need time to get White House approval to release their tactical reserves; that was what their Führer required of them. In the event, the 9th Army released its reserves immediately, Ike released the 82nd and 101st Divisions -- his reserve -- and Patton pulled the entire 3rd Army out of the line without checking with anybody.
That is why we want soldiers who aren't dependent on higher orders.)
Today's NY Times notes that the officer in charge of the Abu Ghraib interrogation facility, a Civil Affairs officer, had no training in the delicate art of interrogation.
http://www.nytimes.com/2004/06/09/politics/09ABUS.html is the link.
So the MPs, whose MOS involves confinement operations, not forcible interrogation (and according to the 15-6 report, damned little training in their own MOS tasks), were following orders from someone who was new to this as well. Which means that our soldiers wind up on the wrong side of the divide between "they told me to do it!" and "I never ordered them to do that."
Bad enough to justify illegality on grounds of realpolitik. But to justify orders resulting from a bureaucratic FUBAR?!
The fact that 65% of untrained civilians would engage in torture is true enough -- T.J. is probably relying on two famous studies to that effect. The point is that trained soldiers can do the right thing on their own, given no officers on the scene or given stupid leadership. The kids we had running that prison had little or no training, plus no leadership (judging by the 15-6 report), and now are probably going to face the legal consequences alone.
MG Taguba named several servicemembers who either disobeyed, or blew the whistle, or both. If the military had any sense they should decorate and promote them, and make a public example of it.
>> Apparently, from what T.J. has indicated, the fact that our soldiers could think and act on their own may be a reason why they defeated the Wehrmacht almost 80 years later.
We should remember that the Wehrmacht had incredible operational and tactical flexibility, far greater than the Soviet forces. Individual intelligence and initiative were very important.
This flexibility enabled the Germans to make a very good showing, even when severely outnumbered. What crushed the Wehrmacht were failures at the strategic level, and 10x allied industrial production.
The current US army decentralization of initiative is based on the German model, and is largely a post-WWII development.
I guess a distinction should be made between tactical flexibility -- "Go take hill 327 tomorrow. How it happens is up to you." -- and tolerance of disobedience. Both the US Army today and the Wehrmacht of the past have a great deal of the former and very little of the latter. Soviet style armies have very little flexibility and absolutely no tolerance of disobedience, hence their great vulnerability to C&C disruption.
Yes, though I suspect that German decentralization of initiative in late WWII, when we were confronting them, may have been more a matter of tactical and operational initiative, and even then mostly in the élite divisions (Waffen-SS, Luftwaffe, etc.). The level of training -- one reason that enables tactical flexibility -- may have been considerably less among replacement Wehrmacht and Volkssturm divisions. Weigley's "Eisenhower's Lieutenants" makes the point that our side's logistics and deployment did not reflect our overall strategic superiority -- shortages of ammo, POL, winter uniforms -- so our soldiers' initiative and ingenuity still counted for plenty.
It's relevant to this thread because where soldiers lack disipline and training, hideous things can happen. The Bataan Death March was at least partly a result of too few troops too ill-trained for the prisoners they were given; the 1945 rape of Manila was partly the result of a garrison reacting to impending death by going on a rampage. (The admiral commanding chose a last stand rather than obeying Gen. Yamashita and retreating to the mountains).
Tolerance of disobedience is not so much the question as having trained and informed people capable of interpreting orders. The IDF (according to van Creveld) has something like "mission superiority" where the "mission" paragraph of the OPORD is what matters; the "operations" orders (para. 3 in US OPORDs) is to be followed but not if there's a cleverer way shows itself on the way to the objective, i.e., the mission.
Excellent call about Hugh Thompson, Mr. Madison. And I believe Joseph Darby is a hero, in a small but significant way; I found *this* very sad and regrettable, and un-American.
Gary, in your original post on this thread, you noted, "It is, I daresay, unusual to see U. S. lawyers arguing that the defendents at Nuremberg were, in fact, innocent in law, and that "I was only following orders" is, indeed, a proper and just defense."
I should note that Justice Robert Jackson took a sabbatical from the Court to be lead US prosecutor at the first great Nuremberg trial. Jackson was also author of a major opinion in the 1952 Youngstown Sheet & Tube case, in which the Court said that a president's wartime powers were not unlimited, even given his powers under Article II's Commander-in-Chief clause.
William Rehnquist clerked for Jackson during the Youngstown period.
I am going to be very interested to see the Court's rulings in the Gitmo, Padilla and Hamdi cases, given that all this Administration chatter is going on while the Supremes are deliberating.
"They stand before the record of this trial as bloodstained Gloucester stood by the body of his slain King. He begged of the widow, as they beg of you: “Say I slew them not.” And the Queen replied, “Then say they were not slain. But dead they are...” If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime."
– U.S. Supreme Court Justice Robert Jackson, end of final U.S. prosecution argument, Nuremberg, 26 July 1946
Y'know, watching Attorney-General John Ashcroft's performance before the Senate Judiciary Committee, denying that the torture memoranda amounted to anything or whether the President approved it, it all reminded me of an exchange from Dr. Strangelove:
President Merkin Muffley: This is preposterous. I've never approved of anything like that.
Ambassador de Sadesky: Our source was the New York Times!