Wednesday, June 09, 2004

You know, there's something comical when the Attorney General refuses to release a confidential memo to Congress, and then the memo is published on the Internet on the same day. It's the now-famous "torture" memo, in which America's Best and Brightest collect the laws that might apply to a torturer.

Dave asks for an explanation of the memo, and I think I can oblige. It's a long memo and densely written, so any summary will be inadequate, but well-intended.

And I'll add this -- I keep revising this post as I think more and more about the content of the memo. So check back. New, bad things keep popping up.


It is a legal memorandum, no different in form from the memoranda I write every day. The goal is to set out the statutory standards, resolve any disputes about the interpretation of those statutes, and illuminate the practical application of those standards through examples from case law. It is tedious and well-written. Like my own work. Of course, I seldom write about naked prisoners forced to mime homosexuality.

I: The Boring Stuff

The first section (to page 18) is an unremarkable rehashing of the relevant legal standards that could be applicable. The relevant statutes and treaties are explained and illuminated, just like in any legal memorandum. There are no policy judgments here. It is a good recap of the criminal law of torture, the various treaties that purport to restrict our ability to torture, and America's weasel words that prevent us from being held to the literal words of the UN treaties.

I have seen the memorandum criticized for its seemingly-callous statement that a torturer must have "specific intent," but that is an uninteresting statement of settled criminal law principles.

The problem is not the content of the information, but the way in which the reader uses it. That is, you can advise someone of the content of the law without intending to "teach them how to push the law to its very limit." Some have called the memorandum a "torture manual," but that is overblown. It is a statement of the law. At the same time, it is a statement of the law from the viewpoint of someone inclined to render every ambiguity in favor of Presidential power, and disinclined to present opposing views.

II. The Presnit As Commander-In-Chief

The second section of the memo (18-24) gets more interesting. Having listed the ways in which our folks could be liable, the memorandum begins listing the exceptions to those rules. The get-out-of-jail-free cards. And the first exception is the one that caused all the stir -- the Commander-in-Chief's constitutional power to wage war without interference.

The memo takes the firm position that the Commander-in-Chief's authority over the ways in which war is waged cannot be restrained by any act of Congress, and thus the Executive branch is free from the Torture Act. Or any other Congressional control, for that matter. War is for the Executive, end of story. Indeed, the memorandum also makes the shaky argument that the Executive would be given the benefit of the doubt when his military orders conflict with criminal statutes.

Now, pause for a moment -- from this point on, the memorandum eliminates from consideration the various treaties that the US has entered into. The Geneva Convention, for instance, is taken off the table. That is because this section purports to only be about American law -- the struggle between Congress and the President. The conventions show up again much later, when the memo analyzes the constitutional limits on torture. (America has limited its commitment to the treaties, such that the treaties do not exceed the scope of the Constitution.) But because the memorandum is not cumulative -- you can use defense X, or Y, or Z -- there's a big honkin' question mark whether the authors think that the President can defy treaties under his Commander-In-Chief authority. Let's be charitable and say that they do not. They seem to see the treaties as a limit on all American power, so let's say that the authors believe that the President is similarly limited, and this section is merely a debate over whether the Executive Branch can be tried under laws passed by Congress. Let's say that. It will help us all sleep.

So, back to the issue of Congress being able to order the President. On the narrow terms in which the argument is framed, it is correct. That is, the President's purely-military decisionmaking is restrained by the Constitution, but not the Congress.

But that conclusion is uninteresting, because (to paraphrase my Contracts teacher), it takes everything interesting out of the question. In fact, its insistence on avoiding the interesting questions seems willful and callous.

The memorandum takes for granted the notion that (1) the President is acting in a truly military capacity, and (2) the torture victim is an "enemy combatant." The memo avoids the much-more-interesting issue of whether those two assertions are valid in Iraq, Afghanistan, and the ill-defined "War" on Terror.

First, there's a very real question whether the "War" on Terror is a "War." Has Congress authorized it? (Cf. Art. I s. 8 regarding power "to declare war"). Is it a "war" at all? And if it is not a straightforward declaration of war -- as so few "conflicts" are these days -- cannot Congress limit the President's power by revising the legislation that created the state of "conflict" in the first place? (cf. Bob Dole repealing the Gulf of Tonkin resolution in 1970, because it was -- and I quote -- "irrelevant") Does not Congress's power of the purse give them a pretty fierce control over the operation of the war? (Art. I s. 8 power to "raise and support armies" and "provide and maintain a navy") All good questions. All completely ignored by the memorandum. Instead, the memorandum freely mixes authorities from WWII, the Civil War, Korea, and Gulf I as if the War on Terror were an honest-to-goodness, tanks-and-troops war. This gloss on the War on Terror is frankly unnerving.

Importantly, though, the memorandum has another section on "self-defense" that makes the very interesting argument that the President has the power to act in the "defense" of America. The memo states "There can be little doubt that the nation's right to self-defense has been triggered under our law." (p. 30) Sure -- but that's the whole country, not the President alone. They also point to the fact that the President must take steps to protect the States against "invasion." (id.) But this analysis is outrageously circumspect -- it avoids the obvious objection that only the Congress can declare war. There's a nod to this problem in the statement "the President has authorized the use of military force with the support of Congress." (p.31) But even that statement is accompanied by a massive footnote that eliminates any reference to Congress, and instead attempts to justify unilateral actions by the President on the theory that it would match international law. Watch this closely -- it's the last time you'll ever see a neoconservative rely on international law for anything. But it's apropos of nothing. The UN recognizes America's right to defend itself, but that doesn't mean that the power is solely and unilaterally vested in the President.

Another footnote (23 n.19) makes some truly extraordinary assertions regarding the President's power to "repel military action" without legislative action. Using only the most decrepit case authority, the memorandum would essentially write the Congress out of the war-making power of the United States. This arises in the context of a passage explaining that the Executive's power is sweeping (all rights "considered to be Executive" are granted unless expressly withheld), unlike the Legislative power (which is withheld unless expressly granted). This is not a literal distortion of the text of the Constitution, but it could certainly be used as a major encroachment on the powers of Congress.

The other legal question is whether the President can designate "enemy combatants" at will, and under what level of "danger" or "military necessity." (The memo repeatedly treats "enemy combatants" as a settled concept, with no gradations. Al Qaeda suspects are no different than uniformed Nazi officers.) Fortunately, that question is currently before the Supreme Court, where the Bush administration argued strenuously that America did not engage in torture. I think all the snarky legal junkies in America are waiting to read the opinion in that one.

Put this in perspective: the most interesting case is Jose Padilla, an American citizen who allegedly desired to commit a terrorist act on United States soil. He was designated an "enemy combatant" and denied all Constitutional protections. He was placed in a brig on a Navy ship in international waters, so the courts would have no jurisdiction over him. Thus, this memorandum essentially asserts that the government could beat the ever-lovin' sh*t out of Padilla any time it wants, based on the President's power to run a conventional war.

Ultimately, this is the flaming-hot section of the memo, and it is nothing more than a shell game -- mixing the question of America's collective right to defend itself with the question of who can declare war and who gets to run that war once it is declared. And the "prize" hiding under the shell is whether "torture" of al-Qaeda suspects has anything to do with the President's power to direct a full-out "war." (The subtext here is the ongoing debate between the Executive and Legislative branches over which has power over foreign policy -- presidents have been trying to increase their grasp for decades. This is a foreign policy question, not a truly "military" one.) If you take everything interesting out of the question, and call the "War on Terror" a true "war" that has been properly declared, then the President is only bound by the U.S. Constitution and our treaties. He is not subject to the American torture laws. Big whoop. The treaties on torture are plenty to get him in hot water.

Now, all that should lead you to have some serious thoughts about America and the Civics class you slept through in high school. But all of this was arguably misrepresented by the Wall Street Journal. The Wall Street Journal article said that:

"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.'"

I don't know the context, so I don't know whether the article explained what was meant by "the laws." But people have gone ape over the words "authority to set aside the laws is 'inherent in the president,'" as if the President could impose martial law, establish a new Reich, etc. etc. That misses a very important semantic distinction. The memorandum is talking about the situation where Congress purports to pass a law restricting the President's power as Commander-in-Chief. Here's the text:

"Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategy or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.

"As this authority is inherent in the President, exercise of it by subordinates would be best if it can be shown to have been derived from the President's authority through Presidential directive or other writing."

It's strong stuff, as I discussed above. But the "authority" being discussed is not the power to set aside all laws. Rather, it is the power of the President to decide for himself whether a law passed by Congress is unconstitutional (inasmuch as it trespasses on the power of the Commander-In-Chief to direct the war), and thereby refuse to honor it. Though Jefferson believed that the Executive had the power to interpret laws and declare them unconstitutional, that theory has long since died out in favor of the Civics-class checks-and-balances view that the courts are the only arbiters of constitutionality. Thus, the memorandum nakedly proposes to discard two hundred years of legal authority. It uses the Constitution as the cover for a massive power grab.

You know, the more I think of this (this is a second addition to this post), and the more I read of this memo, the sicker I get. It's not the power to set aside "all" laws, but it is the power to fight an ill-defined foe for an ill-defined amount of time.

Point to Ponder: If the President can designate anyone as an "enemy combatant," based on an ill-defined "war on terror" that supposedly has the status of a fully-declared war, which allows him to disregard any Congressional law that purports to restrain his authority, can he imprison people that he deems "terrorists" or merely "seditious" to the "war" effort? Can he torture those people? Can they be taken to extraterritorial places where they have no recourse to the courts? Can America become Chile, where women dance for the disappeared?

Answer to Point to Ponder: The memo offers no reason to say "no" to any of the above.

III: "Necessity"

The third section (24-26) regards the "necessity" defense. It is a doctrine intended to address the situation where someone is forced to choose the lesser of two evils, both of which are criminal.

The startling thing here is that the memorandum takes a very positive view of the necessity doctrine. The author likes the fact that "necessity" is a very flexible doctrine which requires an after-the-fact judgment of whether the act was truly the greater good. That is, of course, the danger of the doctrine -- you have to gauge the known harm against the mere allegation that it could have been a lot worse. This explanation is immediately followed by a large redacted section. It's pretty clear that the omitted section says something like this:

"It will always seem 'necessary' to torture terrorism suspects. The risk of total calamity -- which need only be alleged -- will usually outweigh the known harm to a suspect, who will be disfavored because he was accused of terrorism and because he has brown skin. At the very least, 'necessity' will allow a jury to acquit for emotional or patriotic reasons."

IV. Self-Defense

The self-defense section (27-31) gets off to a slow start, as it outlines the usual rules for self-defense across the US. Page 29 gets to the real issue: if you can harm someone in defense of a third person (a point on which the states differ), can a torturer harm his victim in defense of "America"? The author places much reliance on a case from 1890 in which a US agent shot an assassin to save a Supreme Court justice. Everyone that can distinguish that case, raise your hand.

The argument completely derails when the author equates the criminal doctrine of "self-defense" with the country's right to defend itself against al-Qaeda. The memorandum seems to exhibit some defensiveness about the President's unilateral announcement that the country is "defending itself," inasmuch as a rather lengthy footnote is devoted to the subject, as discussed above. At any rate, when "self-defense" is applied to an entire country, the logical connection is lost. Self-defense has nothing to do with the Executive Branch's policies in handling prisoners under its control. The argument was more reasonably founded on the President's right to conduct war, and it wasn't all that reasonably founded there.

V. Superior Orders

The next section on the Nuremberg defense (32-33) gets pretty chilling. It starts off with a thorough and accurate description of the defense throughout domestic and international law. "Just following orders" is NOT a defense if a person of ordinary sense would know that the order was unlawful. Again and again. Well-established.

The chilling part is that the author twists it in the final words: the defense of Superior Orders is available unless the order is patently unlawful. Out goes the "ordinary sense" test, in comes the "absolutely-no-gray-area" test. "Well, gosh Lynndie, I'm not patently certain that it's illegal to butt-rape this man with a blunt instrument, so I can't be arrested."

VI. Torts

Explains that torturers can be sued in civil court. (34) Presumably, the government would have to let the plaintiffs out of their cell and take them to shore.

VII. The Constitution

The next section gets down to the nitty-gritty. The Consitution. The Big C. It applies because the US uses it to define its own obligations under international treaties, not because the torture victims are Americans. Supposedly, this is the limit of all American power to torture.

The memorandum outlines the Eighth Amendment (cruel and unusual punishment) restrictions on conditions of confinement with about as much neutrality as the Iraqi Information Minister. "Cruel and unusual" is narrowed so much that you would pretty much have to be naked, in Siberia, with rabid beagles attacking you day and night, to have a claim of cruel confinement. Moreover, even that claim would be outweighed (according to the author) by the government's tremendous interest in protecting "untold thousands of American citizens." I think the memorandum limits the Eighth Amendment excessively, but not to the point of flagrant intellectual dishonesty. Under Supreme Court precedent, the Eighth Amendment is pretty weak tea.

The "use of force" discussion (under the 5th and 14th, which probably adopt the 8th as a guideline for "due process") is more balanced -- it lays out an awful lot of law, and generally sets up the principle that the action has to be proportionate. In contrast to earlier sections, there is a lot of information here that is presented neutrally. No "rally round the Chief" rhetoric.


The authors take the position that the Constitution does not apply to the "enemy combatants" at Gitmo. But the discussion of "use of force" is so detailed and thorough that I suspect the authors believe the Supreme Court will puncture that particular party balloon. The memo sternly warns of the many, many ways in which prison officials have been found to violate the 5th and 14th amendments.

It is not a coincidence that the very next section discusses whether the "enemy combatants" have any recourse to the courts. Very neutral on the subject.

The subtext is that the authors are raising a huge red flag. The Preznit may be able to defy Congress and the Courts, but international law will be another matter entirely. Bush could end up like Kissinger, carefully planning his flights to ensure that he doesn't get arrested and tried for war crimes.


The memo shifts gears again at page 46, when it discusses the Uniform Code of Military Justice. It is a more dry discussion of the usual criminal laws, followed by a stern warning that the use of force is not lawful if the enemy has "laid down his arms." Boring stuff -- nothing new here -- though it is interesting that the case overshadowing much of this section is U.S. v. Calley, which was the prosecution of the My Lai massacre.

Bonus question: Who first investigated My Lai and announced that there was nothing to these wild allegations of rampant slaughter because (to paraphrase slightly) "Everyone knows relations are very good between the Americans and the Vietnamese"?

Bonus answer: Capt. Colin Powell.

IX. "Considerations Affecting Policy"

Time for a history lesson. At 54 onward, the memo takes a detour to talk about the history of interrogation in the U.S. military. It's pretty fascinating, because it is well-established that torture is a bad idea because it gets you bad information. If the Army knows that it's useless, why are we using it? Sheer f*cking desperation? If we're that hard up for intel, perhaps we should have spent our resources in Afghanistan instead of invading a harmless country as part of the Halliburton Full Employment Principle.

X. Specific Orders By Bush And Rumsfeld

That's where the publicly available copy of the memo abruptly ends -- just before getting into a discussion of the orders issued by Bush and Rumsfeld. The reason is obvious.

Of course, those orders are starting to trickle out as reporters are putting all this stuff into a framework. Rumsfeld personally ordered torture. And more comes out every day.

So that's the memo. Torture 101: uninteresting for 50 pages, with six pages of really interesting stuff sprinkled in there.

Executive Summary: The Preznit can do whatever he wants under American law. But international law is a buzzkill, because it forces us to treat furriners like Americans.

 1:34 PM

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