June 9, 2004
Now it comes out that Pentagon lawyers, Justice Department lawyers, Bush's White House counsel, and Cheney's counsel all were in on the drafting of guidelines that would allow U.S. soldiers to engage in torture and not be prosecuted for it.
These guidelines said that U.S. soldiers, acting on the authority of the commander in chief, are essentially beyond the reach of the Geneva Conventions, the Convention Against Torture, the Anti-Torture Act, and the War Crimes Act.
The prohibition against torture, Pentagon lawyers wrote in one memo, "must be construed as inapplicable to interrogation undertaken pursuant to his commander-in-chief authority."
What good, then, is the international treaty against torture?
What good are the Geneva Conventions, if the head of any country can say I have the authority to run my military the way I want to?
What good is our U.S. Constitution and our system of checks and balances if the President and soldiers under his command are above the law?
The Convention Against Torture, which the United States ratified in 1994, clearly states that no government can weasel out of it for any reason, as The Wall Street Journal noted in a pathbreaking story on June 7. The treaty states: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal instability or any other public emergency, may be invoked as a justification of torture."
But lawyers for the Bush Administration went right ahead and invoked the exceptional circumstances argument, claiming that 9/11 rendered everything essentially null and void.
The whole idea behind these legal barriers to torture is to prevent just such executive assertions--and the torture that flows from them.
This executive overreach (one military lawyer told the Wall Street Journal it was the assertion of "Presidential power at its apex") is appalling for several reasons.
First, these are impeachable offenses! Bush swore to uphold the law and see to it that the laws are faithfully executed. But when it comes to torture, he is seeing to it that the laws are shamefully flouted. He also is violating Article Six of the Constitution, which says treaties are the supreme law of the land.
Second, here we have evidence that the Pentagon lawyers themselves contemplated the torture that everyone at the Pentagon then pretended to be so shocked about. They even got picky as to the definition of torture. "We need to have a less-cramped view of what torture is and is not," one military official who helped prepare the Pentagon report told the Wall Street Journal. So the report states: "The infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture." Instead, the suffering must be "severe" and "must be of such a high level of intensity that the pain is difficult for the subject to endure."
What's more, even if U.S. soldiers inflict such severe and intense pain, they could not be convicted unless they intended that level of severity and intensity. And even then, they could invoke the "necessity defense," the report stated, meaning that they were preventing an imminent, greater harm.
Third, the Bush Administration, in the Supreme Court case concerning Jose Padilla, came under direct questioning from some of the justices as to whether the executive branch had the authority to order torture. The Administration's lawyer said it did not. Was he lying to the Supreme Court?
Here is an exchange from the Padilla case: Question: "If the law is what the executive says it is . . . what is it that would be a check against torture?"
Paul Clement, Deputy Solicitor General: "Well, first of all, there are treaty obligations."
He then went on to talk about court martials, but note that he invoked the very treaty obligations that the Justice Department and Pentagon were saying, in their memos, did not apply.
One of the justices continued: "Suppose the executive says mild torture we think will help get this information. . . . It's an executive command. Some systems do that to get information."
Clement: "Well, our executive doesn't. . . . The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that [executive] authority. You have to recognize that in situations where there is a war--where the government is on a war footing--that you have to trust the executive."
Bush has demonstrated--and the soldiers at Abu Ghraib have demonstrated, as have those who were involved in 37 mysterious deaths of prisoners in Iraq and Afghanistan--that we can't trust the executive.
At a contentious Senate hearing on Tuesday, Attorney General John Ashcroft refused to release the Justice Department memos that justify torture, even though Senator Edward Kennedy and Senator Joe Biden said he had a constitutional obligation to provide them.
Neither Ashcroft nor Rumsfeld nor Cheney nor Bush feels bound by constitutional obligations.