Gong’s diary this morning includes an incendiary bit about “legal” groundings for torture in the war on terror. You know it’s essential reading when the usually equanimous Brad DeLong uses the word “impeachment” in his reaction.
(Reuters) - A Pentagon report last year concluded President George W. Bush was not bound by laws prohibiting torture and U.S. agents who might torture prisoners at his direction could not be prosecuted by the Justice Department, The Wall Street Journal reported on Monday.
The findings were part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld by top civilian and uniformed military lawyers who also consulted with other agencies, the newspaper said.
The report was compiled after commanders at Guantanamo Bay, Cuba, complained in late 2002 that they were not getting enough information from prisoners through conventional methods, according to the Journal
[WSJ story linked here].
Phil Carter's analysis of the DoD report has been making the rounds in Blogworld this morning. Carter, who runs the must-read Web log
Intel Dump, hasn’t yet passed the bar exam, but he exquisitely rips the polish off the DoD’s situationalist approach. An excerpt:
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 ...
Even in wartime, the President's authority to act is limited by the Constitution, and where Congress has specifically proscribed activity. Advice to the contrary is wrong, and any actions which follow this advice are probably unlawful as well.
Don’t expect me to be surprised if the torture memo gets spun by the Duncan Hunters and Alan Dershowitzes - not as evidence of how far from civilized behavior the current administration is willing to depart, but rather of how “unreasonable” proscriptions are exposing us to slaughter by jihadists.
Long before the Abu Ghraib photos hit the airwaves, Dershowitz – in his book
Why Terrorism
Works - was one of many of the high-falutin’ who argued that we live in exceptional times and shouldn't remain hamstrung by obsolete moral strictures. What we need, he said, is a law giving the President the legal authority to approve torture on his own say-so. To his credit, Dershowitz doesn’t argue, as the DoD memo apparently does, that the government should squirm around the current ban on torture. He wants to change the law so that no subterfuge is required.
Well, I’m all for transparency in government, especially after three-and-a-half years being ruled by the Cheney-Bush secrecy cult. If we’re going to say torture is okay, let’s have the debate about it out in the open. Hell, let’s make it a constitutional amendment so everybody can sign off on it.