The White House, in one of its infamous “document dumps,” released hundreds of pages of documents relating to the administration torture policies yesterday afternoon. Like Kevin Drum, I quickly found reading all the various reports a terribly vertiginous experience.
There is, however, one small point that jumped out at me.
Two weeks ago, while the media was all-Reagan, all-the-time, the rest of us learned that the administration had crafted what I call the “above the law” memo, which exempted the president from following the Geneva Conventions (or federal law, or international treaties). Yesterday, among the released documents, we learned that the president agreed he has the authority to ignore laws he doesn’t feel like following.
A Feb. 7, 2002, memo signed by Bush saying that he believed he had “the authority under the Constitution” to deny protections of the Geneva Conventions to combatants picked up during the war in Afghanistan but that he would “decline to exercise that authority at this time.”
There were so many breathtaking facets to yesterday’s news, but this one strikes me as the most interesting. Bush was saying he could break the law if he felt like it, but had decided not to, as of Feb. 7, 2002. How nice.
I’m looking forward to hearing Bush explain which other laws he believes he can ignore when he feels it’s appropriate.
I realize the centerpiece of the White House document dump dealt with torture policies and Bush’s insistence that the government use “humane” treatment. Fine. But I’m still a little stunned that the most radical legal argument imaginable under our constitutional system — the president can do anything he wants, laws be damned, because he’s the president — was endorsed and embraced by Bush.
Whatever else Bush did with regards to “aggressive” intelligence gathering, the fact that he agrees with the notion that the president is somehow exempt from the law tells us all we need to know about his approach to government.
As Mark Kleiman put it two weeks ago:
[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.
One more thing.
A high-ranking Bush adviser, who would not discuss White House strategy for attribution, said officials agreed the only way to end the daily damage from news stories about prisoner abuse was to get all the information out and deal with questions about the documents all at once.
That’s just not so. “All the information” is still not out. As Sen. Patrick Leahy (D-Vt.) noted:
“The stonewalling in the prison abuse scandal has been building to a crisis point. Now, responding to public pressure, the White House has released a small subset of the documents that offers glimpses into the genesis of this scandal. All should have been provided earlier to Congress, and much more remains held back and hidden away from public view.”
Something to keep in mind.
For more, I highly recommend the analysis from Prof. Michael Froomkin, who knows more about all of this than I do.