Sanctioned Torture and Our Constitution

Memo on Torture Draws Focus to Bush
Aide Says President Set Guidelines for Interrogations, Not Specific Techniques

By Mike Allen and Dana Priest
Washington Post Staff Writers
Wednesday, June 9, 2004; Page A03

The disclosure that the Justice Department advised the White House in 2002 that the torture of al Qaeda terrorist suspects might be legally defensible has focused new attention on the role President Bush played in setting the rules for interrogations in the war on terrorism.

White House press secretary Scott McClellan said yesterday that Bush set broad guidelines, rather than dealing with specific techniques. "While we will seek to gather intelligence from al Qaeda terrorists who seek to inflict mass harm on the American people, the president expects that we do so in a way that is consistent with our laws," McClellan said.

White House Counsel Alberto R. Gonzales said in a May 21 interview with The Washington Post: "Anytime a discussion came up about interrogations with the president, . . . the directive was, 'Make sure it is lawful. Make sure it meets all of our obligations under the Constitution, U.S. federal statutes and applicable treaties.' "

An Aug. 1, 2002, memo from the Justice Department's Office of Legal Counsel, addressed to Gonzales, said that torturing suspected al Qaeda members abroad "may be justified" and that international laws against torture "may be unconstitutional if applied to interrogation" conducted against suspected terrorists.

The document provided legal guidance for the CIA, which crafted new, more aggressive techniques for its operatives in the field. McClellan called the memo a historic or scholarly review of laws and conventions concerning torture. "The memo was not prepared to provide advice on specific methods or techniques," he said. "It was analytical."

Attorney General John D. Ashcroft yesterday refused senators' requests to make public the memo, which is not classified, and would not discuss any possible involvement of the president.

In the view expressed by the Justice Department memo, which differs from the view of the Army, physical torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." For a cruel or inhuman psychological technique to rise to the level of mental torture, the Justice Department argued, the psychological harm must last "months or even years."

A former senior administration official involved in discussions about CIA interrogation techniques said Bush's aides knew he wanted them to take an aggressive approach.

"He felt very keenly that his primary responsibility was to do everything within his power to keep the country safe, and he was not concerned with appearances or politics or hiding behind lower-level officials," the official said. "That is not to say he was ready to authorize stuff that would be contrary to law. The whole reason for having the careful legal reviews that went on was to ensure he was not doing that."

The August memo was written in response to a CIA request for legal guidance in the months after Sept. 11, 2001, as agency operatives began to detain and interrogate key al Qaeda leaders. The fact that the memo was signed by Jay S. Bybee, head of the Office Legal Counsel, who has since become a federal judge, and is 50 pages long indicates that the issue was treated as a significant matter.

"Given the topic and length of opinion, it had to get pretty high-level attention," said Beth Nolan, commenting on the process that was in place when she was President Bill Clinton's White House counsel, from 1999 to 2001, and, previously, when she was a lawyer in the Office of Legal Counsel.

Unlike documents signed by deputies in the Office of Legal Counsel, which are generally considered by federal agencies as advice, a memorandum written by the head of the office is considered akin to a legally binding document, said another former Office of Legal Counsel lawyer.

The former administration official said the CIA "was prepared to get more aggressive and re-learn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the president could confer on them."

Critics familiar with the August 2002 memo and another, similar legal opinion given by the Defense Department's office of general counsel in March 2003 assert that government lawyers were trying to find a legal justification for actions -- torture or cruel and inhumane acts -- that are clearly illegal under U.S. and international law.

"This is painful, incorrect analysis," said Scott Norton, chairman of the international law committee of the New York City Bar Association, which has produced an extensive report on Pentagon detentions and interrogations. "A lawyer is permitted to craft all sorts of wily arguments about why a statute doesn't apply" to a defendant, he said. "But a lawyer cannot advocate committing a criminal act prospectively."

The August 2002 memo from the Justice Department concluded that laws outlawing torture do not bind Bush because of his constitutional authority to conduct a military campaign. "As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said the memo, obtained by The Washington Post.

Critics say that this misstates the law, and that it ignores key legal decisions, such as the landmark 1952 Supreme Court ruling in Youngstown Steel and Tube Co v. Sawyer, which said that the president, even in wartime, must abide by established U.S. laws.

 

From the article Faos posted and this one, it's clear Ashcroft is arguing semantics. Take this passage from the Post article below:

Under questioning, Ashcroft said he could not discuss whether the president issued any orders on the interrogation of detainees, but said: "I want to confirm that the president has not directed or ordered any conduct that would violate any one of those enactments of the United States Congress or that would violate the provisions of any of the treaties as they have been entered into by the United States."

Ashcroft said he would not discuss the contents of the Justice and Pentagon memos, and would not turn over the Justice memo to the committee. "I believe it is essential to the operation of the executive branch that the president have the opportunity to get information from the attorney general that is confidential," he said.

The President has not ordered or directed any conduct that would violate any of the treaties or laws because they have all these legal memos that justify how one can order and direct conduct and still stay within their twisted idea of the law. The fact that the memos completely misstate the legal case and are really mere rationalizations for breaking the law is implied in the second paragraph... they don't want to release the memos because then everyone will see how completely bogus the legal reasoning is and everyone will call BS. So, the only thing to do is withhold the memos.

Honor and dignity indeed.


________________________________
Ashcroft Refuses to Release '02 Memo
Document Details Suffering Allowed In Interrogations

By Susan Schmidt
Washington Post Staff Writer
Wednesday, June 9, 2004; Page A01


Attorney General John D. Ashcroft told Congress yesterday that he would not release a 2002 policy memo on the degree of pain and suffering legally permitted during enemy interrogations, but said he knows of no presidential order that would allow al Qaeda suspects to be tortured by U.S. personnel.

Angry Democrats on the Senate Judiciary Committee called on Ashcroft to provide the document. They said portions that have appeared in news reports suggest the Bush administration is reinterpreting U.S. law and the Geneva Conventions prohibiting torture.

Sen. Dianne Feinstein (D-Calif.) said the memo on interrogation techniques permissible for the CIA to use on suspected al Qaeda operatives "appears to be an effort to redefine torture and narrow prohibitions against it." The document was prepared by the Justice Department's office of legal counsel for the CIA and addressed to White House counsel Alberto R. Gonzales.

The 50-page Justice Department memo said inflicting physical or psychological pain might be justified in the war on terrorism "to prevent further attacks on the United States by the al Qaeda terrorist network." It added that "necessity and self defense could provide justifications that would eliminate any criminal liability."

The Bush administration has said that the discussion in the memo notwithstanding, al Qaeda and Taliban detainees, including those held at Guantanamo Bay, have been treated in accord with international conventions prohibiting torture.

The memo and a second written by Pentagon lawyers surfaced in news reports this week amid the ongoing abuse scandal at Iraq's Abu Ghraib prison. The documents reflect discussions on the legality of softening prohibitions against inflicting pain on al Qaeda suspects abroad, saying the practice may sometimes be justified.

Ashcroft's hard-line approach to the war on terrorism has drawn criticism from civil libertarians. This time, he came under fire during a scheduled oversight hearing on a day that brought news of the memos.

"There is no presidential order immunizing torture," Ashcroft told the Judiciary panel. He cited President Bush's statement that al Qaeda captives should be treated in a manner consistent with the Geneva Conventions, even though the administration chose not to designate detainees as prisoners of war.

Under questioning, Ashcroft said he could not discuss whether the president issued any orders on the interrogation of detainees, but said: "I want to confirm that the president has not directed or ordered any conduct that would violate any one of those enactments of the United States Congress or that would violate the provisions of any of the treaties as they have been entered into by the United States."

Ashcroft said he would not discuss the contents of the Justice and Pentagon memos, and would not turn over the Justice memo to the committee. "I believe it is essential to the operation of the executive branch that the president have the opportunity to get information from the attorney general that is confidential," he said.

Sen. Joseph R. Biden Jr. (D-Del.) and Sen. Richard J. Durbin (D-Ill.) warned Ashcroft that his refusal might place him in contempt of Congress.

"If such a memo existed, would that -- is that good law? . . . Do you think that torture might be justified?" Biden demanded.

Ashcroft responded, "I condemn torture. I don't think it's productive, let alone justified."

Biden told Ashcroft that prohibitions against torture are intended to "protect my son in the military. That's why we have these treaties. So when Americans are captured, they are not tortured. That's the reason, in case anybody forgets it."

Ashcroft said he needed no reminder, because his own son has been on active military duty in the Persian Gulf.

Ashcroft added that although he would not comment on the contents of the memo, "it is not the job of the Justice Department or this administration to define torture."

That, he said, has been done in explicit fashion by Congress in enacting law that bars intentional infliction of "severe physical or mental pain or suffering." Ashcroft said he would not be drawn into a discussion of the legal boundaries of aggressive interrogation.

Sen. Charles E. Schumer (D-N.Y.), who has taken a tough line against terrorism suspects, alluded to the "high dudgeon" of his Democratic colleagues, saying he wanted to "interject a note of balance here.

"We ought to be reasonable about this," he told the crowded committee room. "I think there are very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake."

Bush, Schumer told Ashcroft, "can hardly be blamed for asking you or his White House counsel or the Department of Defense to figure out when it comes to torture, what the law allows." But, Schumer said, the debate and decisions should be public.

Ranking Democrat Patrick Leahy (Vt.) , angry that Ashcroft had not been before the panel in 15 months, released a fusillade of criticism about his handling of the war on terrorism.

"Mr. Attorney General, your statement lists accomplishments of the Department of Justice since 9/11. But you leave out a number of things. For example, of course, the obvious: Osama bin Laden remains at large," Leahy said. He said that Ashcroft's "practices seem to be built on secret detentions and overblown press releases."

But Republicans, particularly committee Chairman Orrin G. Hatch (Utah), lauded the Justice Department's efforts. Ashcroft was unapologetic about his department's efforts to jail or deport suspected terrorist sympathizers.

"We have been criticized for these tough tactics, but we will continue to use every means within the department and its reach and within the Constitution and the statutes to deter, to disrupt, destroy terrorist threats," he said.

 

WaPo editorial...
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Legalizing Torture


Wednesday, June 9, 2004; Page A20


THE BUSH administration assures the country, and the world, that it is complying with U.S. and international laws banning torture and maltreatment of prisoners. But, breaking with a practice of openness that had lasted for decades, it has classified as secret and refused to disclose the techniques of interrogation it is using on foreign detainees at U.S. prisons at Guantanamo Bay and in Afghanistan and Iraq. This is a matter of grave concern because the use of some of the methods that have been reported in the press is regarded by independent experts as well as some of the Pentagon's legal professionals as illegal. The administration has responded that its civilian lawyers have certified its methods as proper -- but it has refused to disclose, or even provide to Congress, the justifying opinions and memos.

This week, thanks again to an independent press, we have begun to learn the deeply disturbing truth about the legal opinions that the Pentagon and the Justice Department seek to keep secret. According to copies leaked to several newspapers, they lay out a shocking and immoral set of justifications for torture. In a paper prepared last year under the direction of the Defense Department's chief counsel, and first disclosed by the Wall Street Journal, the president of the United States was declared empowered to disregard U.S. and international law and order the torture of foreign prisoners. Moreover, interrogators following the president's orders were declared immune from punishment. Torture itself was narrowly redefined, so that techniques that inflict pain and mental suffering could be deemed legal. All this was done as a prelude to the designation of 24 interrogation methods for foreign prisoners -- the same techniques, now in use, that President Bush says are humane but refuses to disclose.

There is no justification, legal or moral, for the judgments made by Mr. Bush's political appointees at the Justice and Defense departments. Theirs is the logic of criminal regimes, of dictatorships around the world that sanction torture on grounds of "national security." For decades the U.S. government has waged diplomatic campaigns against such outlaw governments -- from the military juntas in Argentina and Chile to the current autocracies in Islamic countries such as Algeria and Uzbekistan -- that claim torture is justified when used to combat terrorism. The news that serving U.S. officials have officially endorsed principles once advanced by Augusto Pinochet brings shame on American democracy -- even if it is true, as the administration maintains, that its theories have not been put into practice. Even on paper, the administration's reasoning will provide a ready excuse for dictators, especially those allied with the Bush administration, to go on torturing and killing detainees.

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.

 

NYTimes editorial...
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The Roots of Abu Ghraib

In response to the outrages at Abu Ghraib, the Bush administration has repeatedly assured Americans that the president and his top officials did not say or do anything that could possibly be seen as approving the abuse or outright torture of prisoners. But disturbing disclosures keep coming. This week it's a legal argument by government lawyers who said the president was not bound by laws or treaties prohibiting torture.

Each new revelation makes it more clear that the inhumanity at Abu Ghraib grew out of a morally dubious culture of legal expediency and a disregard for normal behavior fostered at the top of this administration. It is part of the price the nation must pay for President Bush's decision to take the extraordinary mandate to fight terrorism that he was granted by a grieving nation after 9/11 and apply it without justification to Iraq.

Since the Abu Ghraib scandal broke into public view, the administration has contended that a few sadistic guards acted on their own to commit the crimes we've all seen in pictures and videos. At times, the White House has denied that any senior official was aware of the situation, as it did with Red Cross reports documenting a pattern of prisoner abuse in Iraq. In response to a rising pile of documents proving otherwise, the administration has mounted a "Wizard of Oz" defense, urging Americans not to pay attention to inconvenient evidence.

This week, The Wall Street Journal broke the story of a classified legal brief prepared for Defense Secretary Donald Rumsfeld in March 2003 after Guantánamo Bay interrogators complained that they were not getting enough information from terror suspects. The brief cynically suggested that because the president is protecting national security, any ban on torture, even an American law, could not be applied to "interrogation undertaken pursuant to his commander-in-chief authority." Neil A. Lewis and Eric Schmitt reported yesterday in The Times that the document had grown out of a January 2002 Justice Department memo explaining why the Geneva Conventions and American laws against torture did not apply to suspected terrorists.

In the wake of that memo, the White House general counsel advised Mr. Bush that Al Qaeda and the Taliban should be considered outside the Geneva Conventions. But yesterday, Attorney General John Ashcroft assured the Senate Judiciary Committee that Mr. Bush had not ordered torture. These explanations might be more comforting if the administration's definition of what's legal was not so slippery, and if the Pentagon, the Justice Department and the White House were willing to release documents to back up their explanation. Mr. Rumsfeld is still withholding from the Senate his orders on interrogation techniques, among other things.

The Pentagon has said that Mr. Rumsfeld's famous declaration that the Geneva Conventions did not apply in Afghanistan was not a sanction of illegal interrogations, and that everyone knew different rules applied in Iraq. But Mr. Rumsfeld, his top deputies and the highest-ranking generals could not explain to the Senate what the rules were, or even who was in charge of the prisons in Iraq. We do not know how high up in the chain of command the specific sanction for abusing prisoners was given, and we may never know, because the Army is investigating itself and the Pentagon is stonewalling the Senate Armed Services Committee. It may yet be necessary for Congress to form an investigative panel with subpoena powers to find the answers.

What we have seen, topped by that legalistic treatise on torture, shows clearly that Mr. Bush set the tone for this dreadful situation by pasting a false "war on terrorism" label on the invasion of Iraq.

 

The Rule of Law is not as important as the Attorney General's beliefs...
________________

DURBIN: You have said that you're not claiming executive privilege; that's for the president to claim. But the law's very clear: you have two options when you say no to this committee: Either the executive claims privilege and refuses to disclose, or you cite a statutory provision whereby Congress has limited its constitutional right to information.

So which is it, Mr. Attorney General? Is it executive privilege, or which statue are you claiming is going to shield you from making this disclosure of these memos at this point?

ASHCROFT: . . . I couldn't agree more heartedly with you that the Constitution is controlling. . . .

(CROSSTALK)

DURBIN: I respect that. But under which standard are you denying this committee the memos, either executive privilege or a specific statutory authority created by Congress exempting your constitutional responsibility to disclose? Under which are you refusing to disclose these memos?

ASHCROFT: I am refusing to disclose these memos because I believe it is essential to the operation of the executive branch that the president have the opportunity to get information from his attorney general that is confidential and that the responsibility to do that is a function of the executive branch and a necessity that is protected by the doctrine of the separation of powers in the Constitution.
. . .

DURBIN: Sir, Attorney General, with all due respect, your personal belief is not a law, and you are not citing a law and you are not claiming executive privilege. And, frankly, that is what contempt of Congress is all about.

 

Michael Froomkin, University of Miami Law Prof...
_________________

I have read a redacted copy of the first 56 pages of the Torture Memo (alternate source). The memo — or at least the approximately half of it we have — sets out a view as to how to make legal justifications for the torture of detainees unilaterally labeled by the government as “unlawful combatants”, including (but not limited to?) al Qaida and Taliban detainees in Guantanamo.

Here are my initial comments on some of the main points, especially those regarding Presidential powers and international law. I’ve concentrated on those parts because those are the relevant issues I think I know the most about; in contrast, I say little here about the direct criminal law issues. I wrote this in a hurry, so please treat these as tentative remarks. I look forward to discussion with other readers, and will post amendments and corrections when they are brought to my attention.

1. The memo begins by noting, accurately, that our international obligations include a commitment to refrain from actions that would be ‘cruel and unusual punishment’ under the Constitution. This acknowledgment does not, however, infuse much of what follows.

2. The memo notes that Justice Department opined in a separate memo dated January 22, 2002, Re: Application of Treaties and Laws to al-Queda and Taliban Detainees, that customary international law “cannot bind the Executive Branch under the Constitution because it is not federal law” and in particular clear executive decisions would be “controlling” law that would trump customary international law. [Note: The Jan. 22 memo cited here seems related to the Gonzales memo of Jan 25, but to be a separate document — is a copy available anywhere?]

In my opinion, the first part of this statement about customary international law is directly contrary to the Restatement (3rd) of Foreign Relations Law of the United States § 111(1) — although I suppose a reasonable person might conceivably disagree. The second part is simply weasel wording: Compliance with customary law is an international obligation of the US, but not always a domestic obligation. It’s agreed that Congress can constitutionally legislate in a way that would violate our international obligations, although as a matter of construction courts presume it has not done so unless the Congressional intent to violate international law is explicit. It’s not generally agreed the President can do this unilaterally, especially since the Supreme Court declared that “international law is part of our law” in The Paquete Habana (1900).

3. As previously noted by the WSJ, the memo argues (accurately, in my opinion) that the Torture statute, 18 USC § 2340, applies only to conduct outside the US, then it argues (plausibly) that Guantanamo is inside the US for jurisdictional purposes, hence not within the zone covered by § 2340. As I noted previously, this analysis conflicts with the position the US government took regarding Guantanamo before the Supreme Court. (But I actually think the memo has it right, and the US litigation posture wrong.) The memo argues that the two positions can be reconciled, which again is technically correct—they can be read that way—but I think it would be wrong to read them that way, and it’s certainly not compelled.

4. Then there’s a long discussion of what is or isn’t torture, with much fine parsing of the torturer’s intentions, all of which seems designed to bend over backwards to suggest that hurting people a whole lot to the point of damage is fine if you do it with the right spirit. I cannot bear to summarize all this; it is too painful. I have never seen a better demonstration of the first part of the saying that “the letter killeth, but the spirit giveth life,” an ironic property given the identity of the lead author.

5. The discussion of Presidential powers begins (page 20) with the observation that in the exercise of the commander-in-chief function, and in particular in the conduct of operations against hostile forces, the President enjoys “complete discretion”. That the President’s powers are at their greatest in these circumstances cannot be disputed. But while the discretion is indeed very great, I do not see how it could possibly be read to include the authority to commit war crimes, even pre-Nuremburg. And today it clearly cannot include that authority, at least without explicit Congressional authorization. Thus, the entire discussion of Presidential power is based on a premise so false that any student who has taken introductory International Law should be able to recognize its error. And as any logician will tell you, when you begin with an erroneous premise, you are in trouble.

6. A similar error infuses the paper’s discussion of the application of the Torture statute, 18 USC § 2340, to actions on the field of battle or activities ancillary to battle. On p. 21 the paper states that the President’s military authority to run a campaign means that the Torture statute “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority” (i.e. all military interrogations in wartime) because — I am not making this up, they are — “Congress lacks the authority to under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.” In short, according to this memo, on the field of battle the President’s authority is absolute (recall that the English commander-in-chief was an official who reported to George III). “Congress may no more regulate the President’s authority … to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

This is clearly wrong on the Constitutional level, and quite probably a bad analogy. It is clearly wrong to suggest that Congress exceeds its authority when it implements an international treaty obligation against torture, even if this has the result of reducing otherwise extant Presidential power. This is because under Article VI of the Constitution, international treaties “shall be the supreme Law of the Land”. We’ve known that this means what it says since at least Missouri v. Holland, if not long long before.

It is generally agreed — and I certainly believe — that Congress has no role in dictating battlefield troop movements, or the choice of field commanders (as opposed to its constitutional role in approving promotions). Conversely, under the Constitution, if not always in real life, Congress does get to choose who we attack. And Congress does have a say in the methods by which we wage war, both via the spending power and via its constitutionally prescribed role in setting the rules of military justice. If Congress passes a law that says it’s a criminal act for a soldier to thumb his nose at a prisoner, or carry a type of weapon, that’s a valid law, and the Commander in Chief authority cannot trump it. To argue otherwise is to say that were Congress to decide that we should not make a neutron bomb, as it did, the President could nonetheless decide to make one, and use it on the battlefield. Similarly, were Congress to pass a law that said nuclear weapons could only be used if certain conditions had been met, under the Constitution the President would not have the authority to ignore that limitation.

But that’s all beside the point. Even if we were to accept that the President has unlimited authority over the battlefield, it in no way follows that this authority extends to Guantanamo, which is far removed from it. The memo treats this as given. It is anything but given.

Page 23 really goes off the rails, making an argument popular with the Federalist Society, but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power. The so-called “unitary executive” argument is set out most clearly in a Harvard Law Review article, Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992). My explanation as to why this article is profoundly wrong and dangerous can be found at A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. L. Rev. 1346 (1994), which in turn sparked separate and not entirely consistent answers from each of the two authors of the Structural Constitution article. My rebuttal article Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) is also online.

On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with “enemy combatants”. The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.

7. The draft returns to the theme of cruel and unusual punishment around page 35, grudgingly noting that although Gitmo detainees have no constitutional rights since they are foreigners, the US nonetheless can’t subject to them to acts that would be ‘cruel and unusual’ due to our obligations under the Convention Against Torture. Having said that, the memo notes that what is cruel and unusual is not a hard and fast rule (I’d add “in all cases”, since I think some things are per se cruel and unusual), and what is forbidden may depend on the circumstances. Having constructed this loophole — which to the extent it exists is not designed to allow coercive questioning — the memo then tries to squeeze through it, noting in its Eight Amendment analysis that the “government interest here is of the highest magnitude” (p. 38) and hence things that might be excessive force in other circumstances might not be here. But it doesn’t come to any specific conclusions about what’s in and what’s out.

8. There’s an extensive discussion of various criminal and civil statutes that might land a torturer in hot water, but I’m going to skip over those. Similarly, I’m not going to discuss the UCMJ provisions cited on pages 47-51, except to note that the UCMJ is a congressional enactment, pursuant to its constitutional powers. Indeed, as the memo notes, “even in war limits to the use of force exist” and these are enforced by the military justice system.

The memo is ambiguous as to whether it argues that the UCMJ is an infringement of the President’s supposed plenary power of the military. Failing to make this argument would expose the flaws in its own reasoning that the President is subject to no legal constraint in his prosecution of a war and in any ancillary activities relating to it. On the other hand, arguing the UCMJ is invalid is obviously nuts. Here’s what the memo says on the subject of the President unilaterally overruling the UCMJ (p. 53):

“Legal doctrines could render specific conduct, otherwise criminal not unlawful.

See discussion of Commander-in-Chief Authority, supra.

Oddly, there’s no mention of the Constitutionally proper means by which a President could in fact overrule the UCMJ — by exercising the Pardon power. (Perhaps it’s not so odd — unitary executive partisans don’t want to admit that the Pardon power is how the President balances Congress’s lawmaking power; they’d rather have the President in effect legislate.)

9. The final section of the 56 pages in the version posted online (there’s obviously lots of the memo left to be found), discusses the very reasonable rules in fact used heretofore by the US armed forces. Unlike the authors of this memo, the folks on the sharp end eschew physical torture, preferring interrogation techniques that sound a lot like what the cops do down at the station.

10. This memo is labeled “draft”. Even so, if the second half is like the first, then everyone who wrote or signed it strikes me as morally unfit to serve the United States.

If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, “I was just following orders” is NOT (and should not be) a defense.