Wednesday, June 09, 2004

The Justice Department Memo: A Commentary Round-Up

It's too bad that it took a pro-torture legal brief to awaken the Washington Post to the grave dangers the Bush Administration poses to democracy. Still, rather than complain about them showing up late to the party, let's embrace the fact that they showed up with this stunning editorial at all.
Perhaps the president's lawyers have no interest in the global impact of their policies -- but they should be concerned about the treatment of American servicemen and civilians in foreign countries. Before the Bush administration took office, the Army's interrogation procedures -- which were unclassified -- established this simple and sensible test: No technique should be used that, if used by an enemy on an American, would be regarded as a violation of U.S. or international law. Now, imagine that a hostile government were to force an American to take drugs or endure severe mental stress that fell just short of producing irreversible damage; or pain a little milder than that of "organ failure, impairment of bodily function, or even death." What if the foreign interrogator of an American "knows that severe pain will result from his actions" but proceeds because causing such pain is not his main objective? What if a foreign leader were to decide that the torture of an American was needed to protect his country's security? Would Americans regard that as legal, or morally acceptable? According to the Bush administration, they should.
No comment in the Post about the attempted coup inherent in the Justice Department's Nixonian assertion that the president is above the law and can set it aside at will. Josh Marshall comments:
So the right to set aside law is "inherent in the president". That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around. This is the essence of what the rule of law means -- a government of laws, not men, and all that.
For a more thorough exploration of the legal and constitutional implications of the Bush Administration's claims, you can't do better than law professor Michael Froomkin, who has posts on the subject here and here. Among other things, he points out that the Justice memo argues that U.S. statutes prohibiting torture only apply to actions taken outside the U.S., while Guantanamo is legally part of the U.S. for jurisdictional purposes. But the Administration also argued in their recent Supreme Court case that the treatment of Gitmo detainees was outside the jurisdiction of U.S. courts because Guantanamo was not part of the United States. In other words, the legal position of the United States Justice Department appears to be that Guantanamo Bay exists in some weird science-fictional dimension in which it is neither inside nor outside the U.S., and is therefore subject to no controlling authority but the naked will of men with guns. If that doesn't scare the shit out of you, you're not paying attention. Really: read all of Froomkin's analysis. Phil Carter also continues to address the legal aspects of the Bush Administration's arguments; there are updates here, and he promises that a more thorough analysis is upcoming. The entire Justice memo is here (PDF file), if you want to read it.

It's critically important to note that, for the most part, the legal forces within the military have fought the Bush Administration's attempts to erode the rule of law. JAG lawyers have pushed for greater prisoner protections and are are vigorously defending the rights of foreign defendants sent before military tribunals. JAG Reservist and Indiana Rep. Steve Buyer - a Republican, so obviously this is not about kneejerk partisanship - volunteered to go to Iraq to supervise prison interrogations, a role he filled during the first Gulf War, and was turned down.
Under condition of anonymity, one current JAG officer told ABCNEWS that for the last two years, "the military lawyers have always been the ones speaking for greater protections and recognitions of rights for detainees — and the political appointees have argued for no recognition of rights and careful control of the process. That's an argument, to date, that the political appointees have won."

Several JAG sources report that, to form the rules for military tribunals, the Pentagon initially created a "Tiger Team" of Army JAG officers. But that team was soon disbanded by Haynes and the political appointee attorneys took over the process. JAG sources interpreted the move as being the result of military lawyers' insistence on greater rights and protections for detainees than what Haynes, Feith and others wanted to permit.