This week’s media revelations about the Bush administration’s belief that the president is above the law in using torture in the war on terror has obviously pushed international prison abuse back on to the front burner. The White House appears to have been caught off guard, because their arguments aren’t making a lot of sense.
Senate Dems had the chance to chat with Attorney General John Ashcroft about this yesterday. It didn’t go well.
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.
To their credit, Dems were in a no-nonsense kind of mood.
Senator Joseph Biden, a Delaware Democrat, challenged Ashcroft to say whether he was invoking executive privilege in refusing to give Congress the Justice Department memos. Ashcroft said he wasn’t invoking executive privilege.
“You might be in contempt of Congress, then,” Biden replied. “You have to have a reason. You better come up with a good rationale.”
Going over the transcript, Ashcroft seemed to rely on three lines of defense. None of them worked.
“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.”
So the administration prepares documents that legalize torture and places the president above the law, but don’t worry, there haven’t been any presidential orders on this. Can we see the White House’s memos to be sure? Uhh, no.
Ashcroft just wants everyone to take his word for it. For some reason, he considers his personal credibility that strong. He’s mistaken.
Second, was the “separation of powers” argument.
“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,” Ashcroft said. “And for that reason — and that is the reason for which I have not delivered to the Congress or the members of the Senate these memos, any memos.”
I could explain why this is ridiculous, but I’ll just quote Sen. Dick Durbin (D-Ill.), who explained it well to Ashcroft.
“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,” Durbin said. “And, frankly, that is what contempt of Congress is all about. You have to give us a specific legal authority which gives you the right to say no or the president has to claim privilege. And you’ve done neither. I think this committee has a responsibility to move forward on this.”
Subpoena time?
And finally, when left with no other options, Ashcroft rolled out the “national security” defense.
“I’m not doing anything other than to say that there is a long-established policy reason grounded in national security that indicates that the development and the debate of hypotheses and practice of what can and can’t be done by a president in time of war is not good government,” Ashcroft said.
That sounds good, but it doesn’t work with the administration defense rolled out 24 hours earlier.
Senior Pentagon officials on Monday sought to minimize the significance of the March memo, one of several obtained by The New York Times, as an interim legal analysis that had no effect on revised interrogation procedures that Mr. Rumsfeld approved in April 2003 for the American military prison at Guantánamo Bay, Cuba.
The administration can’t have it both ways. Either the documents are meaningless legal theories, cooked up as something of a thought experiment with no intention of implementation, or the memos are important to national security and have to be kept confidential. It can’t be both.