If a government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network," said the memo, from the Justice Department's office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later.The memo outlines justifications and legal defenses for U.S. personnel involved in torture, and includes a new and restrictive definition that for an act to qualify as torture, the pain "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Beatings? Not torture. Prolonged bondage in painful positions? Not torture. Food deprivation? Not torture. If you're a U.S. soldier or a veteran and any of those things happened to you as a P.O.W., rest assured that you weren't tortured. Our government thinks those techniques are A-OK, and I'm sure that our enemies are taking notes.
Do I even need to address the self-defense argument? The case for it is generally made with hypotheticals: "You have a prisoner who you know has information about an imminent attack on New York..." and so Alan Dershowitz gleefully advocates a sterilized needle under the fingernail. But the hypothetical scenario begs the question. "You have a prisoner who you know..." We don't know. We guess. We assume that, if you've been locked up at Guantanamo Bay or Abu Ghraib, that you must know something about terrorism. So we go fishing.
Many of the prisoners at Guantanamo were turned in by bounty hunters, in response to U.S. leaflets promising "millions of dollars for helping ... catch Al Qaeda and Taliban murderers ... enough money to take care of your family, your village, your tribe for the rest of your life." Ninety percent of the prisoners at Abu Ghraib were arrested "by mistake," according to the Red Cross - who got their information from military intelligence officers. If you pick up a man in a street sweep, the ticking time bomb hypothetical hardly applies. And yet the memo argues that torturing these prisoners could qualify as "necessity and self-defense."
The Washington Post article linked above apparently leaves out the parts of the memo which - I was going to say "which are the most damning," but upon reflection it really seems to me that the memo is damning from top to bottom. But the Post apparently leaves out the portions of the memo which attribute to the Bush Administration a sort of divine right of kings. Phil Carter - whose post is an absolute must-read - says the Wall Street Journal had more, and links to this reprint of the WSJ story:
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.The Administration is arguing that Bush has the authority to set aside the law as he wishes. They don't think he should be held accountable to U.S. or international law. This memo amounts to an official legal opinion that the President of the United States can do any damn thing he wants to, as long as he cloaks his actions in vague language invoking national security. Of all the ways, great and small, that this Administration has arrogated power to the executive branch, this is the most breathtaking. I try to avoid extremes of paranoid rhetoric, but this really is an attempt to provide a legal defense of dictatorship. It's a complete denial of the separation of powers the Founders instituted to protect us from the overreaching hand of government. No one in a free country has "authority to set aside the laws." No one.
"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." [...]
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."