Yesterday, the Wall Street Journal offered a stunning account of a classified Bush administration report that outlined how and why the president is not bound by domestic or international laws forbidding torture. Today, the rest of the press caught up.
To be sure, the WSJ article is remarkable on its own. It details exactly how the administration came to believe that the president is simply above the law while executing a war on terror. The White House documents have an ex cathedra feel to them — the president can do anything he wants, laws be damned, because he’s the president. Anyone following the president’s orders would be free of punishment, because they were following the president’s orders.
Mark Kleiman noted the obvious extra-constitutional power grab.
[I]f the President can lawfully suspend, by his own mere say-so, any law he thinks inconsistent with the public safety, then there is no check on the President’s power save his own self-restraint and calculation of political reaction. Perhaps one could call a nation so ruled a republic — the definitional question is a nice one — but it would not be the republic established in 1789.
Likewise, Josh Marshall suggested the administration’s line of reasoning was chilling.
So [the administration argued that] 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.
Today, the New York Times helped move the ball forward a bit, including some insight into the administration’s scary definition of torture.
The March 6 document about torture provides tightly constructed definitions of torture. For example, if an interrogator “knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith,” the report said. “Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his control.”
The adjective “severe,” the report said, “makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the text provides that pain or suffering must be ‘severe.’ ” The report also advised that if an interrogator “has a good faith belief his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture.”
This logic strains credulity. To hear the administration tell it, torture is acceptable if the torturer doesn’t really mean it. In other words, it’s all about the “objective,” not the abuse. If an interrogator uses torture to extract information, then it’s perfectly acceptable so long as information, not torture, is the goal.
The NYT also learned that the administration specifically abandoned the Geneva Conventions for war in Afghanistan.
Another memorandum obtained by The Times indicates that most of the administration’s top lawyers, with the exception of those at the State Department and the Joint Chiefs of Staff, approved of the Justice Department’s position that the Geneva Conventions did not apply to the war in Afghanistan. In addition, that memorandum, dated Feb. 2, 2002, noted that lawyers for the Central Intelligence Agency had asked for an explicit understanding that the administration’s public pledge to abide by the spirit of the conventions did not apply to its operatives.
This appears to conflict with several public statements from administration officials who insisted the administration consistently observed the Geneva Conventions.
It was also interesting to see who was involved with creating this analysis, and who disapproved.
[Lawrence Di Rita, the Pentagon’s chief spokesman] said that the Pentagon officials were focused primarily on the interrogation techniques, and that the legal rationale included in the March memo was mostly prepared by the Justice Department and White House counsel’s office.
The memo showed that not only lawyers from the Defense and Justice departments and the White House approved of the policy but also that David S. Addington, the counsel to Vice President Dick Cheney, also was involved in the deliberations. The State Department lawyer, William H. Taft IV, dissented, warning that such a position would weaken the protections of the Geneva Conventions for American troops.
What a shock; the White House ignored Colin Powell. That never happens.
The Washington Post, meanwhile, talked to some Pentagon officials who realize how extraordinary all of this is.
At the time, the Justice Department’s legal analysis, however, shocked some of the military lawyers who were involved in crafting the new guidelines, said senior defense officials and military lawyers.
“Every flag JAG lodged complaints,” said one senior Pentagon official involved in the process, referring to the judge advocate generals who are military lawyers of each service.
“It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way,” said a senior military attorney. “Once you start telling people it’s okay to break the law, there’s no telling where they might stop.”
No, there isn’t.