Kingmakers in the Pentagon

The Wall Street Journal reports that Department of Defense lawyers knew and approved of the torture in Guantanamo Bay, in a secret working group created by DoD Counsel William Haynes and run by Air Force Counsel Mary Walker.

There are several very interesting things about this report. It supports previous claims of torture in Guantanamo Bay, and even the Wall Street Journal is calling it torture when the mainstream media refuses to so for the same actions in Iraq, but it gets even more interesting than that.

The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in late 2002 that with conventional methods they weren't getting enough information from prisoners...

In October 2002, the head of military police at Guantanamo Bay, National Guard Brigadier General Rick Baccus, was sacked from the Guard and had his unit disbanded after he insisted on treating prisoners at least sort-of in line with the Geneva Conventions. The official reason for his discharge was that he failed to communicate effectively with his commanding officer, Major General Reginald Centracchio. Baccus was replaced by Major General Geoffrey Miller. Baccus's military police unit, Task Force 160, was merged into the newly created interrogation unit Task Force 170, formed in January 2002 and headed by Major General Michael Dunlavy, and said to include FBI and CIA officers.

It seems logical to conclude that Miller requested authority from the Pentagon to torture prisoners as soon as he got into his post at Guantanamo. It's also possible that he was sent there with that authority, the request being a formality.

Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the "necessity" of using such methods to extract information to head off an attack, or "superior orders," sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no "moral choice was in fact possible."

If you've lived on this Earth for more than a few years your attention has been drawn to the second part, but let's go back to the first for a moment. It suggests that torture is acceptable if a captive has information. If the captive does not have information, it stands to reason that mistakenly assuming he does is grounds for torture. Of course all this bantering about little details ignores that the US is bound by the UN Convention Against Torture which covers "all members of the human family", not to mention the Eighth Amendment to the United States Constitution which forbids all "cruel and unusual punishments" with no loopholes other than the qualification of "cruel and unusual".

Now for the second part; yes, that says the Bush Administration is promoting the Nazi defense. The WSJ quotes the Nuremburg committee as saying "no 'moral choice was in fact possible'" in such situations, but a more telling quote on the committee's attitude would be this: "[t]he fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment, if the Tribunal determines that justice so requires ."

The most important part of the story is the DoD's position on the powers of the President:

"In order to respect the president's inherent constitutional auth ority to manage a military campaign ... (the prohibition against torture) must b e construed as inapplicable to interrogations undertaken pursuant to his command er-in chief authority," the report asserted. (The parenthetical comment is in th e original document.) The Justice Department "concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president's constitutional power", the report said. Citing confidential Justice Department opinions drafted after Sept. 11, 2001, the report advised tha t the executive branch of the government had "sweeping" powers to act as it sees fit because "national security decisions require the unity in purpose and energ y in action that characterize the presidency rather than Congress."

...

the lawyers rely on the "commander-in-chief authority," concluding that "with out a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority" to wage war. Moreover, "any effort by Congr ess to regulate the interrogation of unlawful combatants would violate the Const itution's sole vesting of the commander-in-chief authority in the president," th e lawyers advised.

Likewise, the lawyers found that "constitutional principles" make it impossib le to "punish officials for aiding the president in exercising his exclusive con stitutional authorities" and neither Congress nor the courts could "require or i mplement the prosecution of such an individual."

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serv e as evidence, since authority to set aside the laws is "inherent in the preside nt."

Originally, the President's authority to go to war extended only as far as Congress authorized. Later Presidents have been powerful enough to launch attacks on their own initiative, even against the opposition of the Supreme Court, because nobody else commands an army to stop the President's if he chooses to do so. The DoD lawyers are claiming that this therefore implies a legal and Constitutional right of the President to do anything he wants with the Army, regardless of law; which in the last paragraph, extends to disregarding any law, because the President has the power of the Army behind him.

In Atrios's words, the United States becomes "an elected dictatorship"; and if the President can ignore any laws, who is to say he must follow the laws about holding elections? This is the monarchist strain rising, a desire to establish an absolute ruler of the United States. Nothing could be more fundamentally opposed to the principles the US was founded upon, and these are the people Bush is appointing as judges.

Phillip Carter has some analysis on the actual unConstitutionality of the DoD's position. Another site with analysis is Billmon's Whiskey Bar.

Posted by Warrior Tang at June 7, 2004 10:57 AM

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