July 27, 2005

First, Shoot All The Lawyers (Torture Memos Update)

Via Crooked Timber, a link to Marty Lederman's blog Balkinization. Lederman details the history of an extrordinary series of back-and-forths between the Pentagon's Judge Advocate General Office (JAG, like the TV show) and the Department of Justice regarding the use and authorization of "extreme interrogation techniques". These memos are dated from early in 2003.

What's unreal is how every single ranking officer from all four services (Army, Navy, Air Force, Marines) who is in charge of the lawyers (the JAGs) for that service comes out against the expansion of military personel being involved. From the memos themselves:

2. (U) Several of the more extreme interrogation techniques, on their face, amount to violations of domestic criminal law and the UCMJ (e.g., assault). Applying the more extreme techniques during the interrogation of detainees places the interrogators and the chain of command at risk of criminal accusations domestically. Although a wide range of defenses to these accusations theoretically apply, it is impossible to be certain that any defense will be successful at trial; our domestic courts may well disagree with DoJ/OLC's interpretation of the law. Further, while the current administration is not likely to pursue prosecution, it is impossible to predict how future administrations will view the use of such techniques...
5. (U) Finally, the use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral "high-road" in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty. It should be noted that law of armed conflict and code of conduct training have been mandated by Congress and emphasized since the Viet Nam conflict when our POWs were subjected to torture by their captors. We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.

The author of those two paragraphs is not some bleeding-heart liberal, Democratic US Senator, or left-wing blogger. That was Major General Jack Rives (US Air Force) in March 2003. The top lawyer, and a Major General to boot, sets out in plain black and white that the interrogation techniques they are being asked to use are just, plain wrong. Read the entire memos (they are not long, and they are remarkably plain and clear).

I'll put two more paragraphs up, just unbelievable stuff. Remember, this is the Pentagon arguing with political lawyers in Bush's Ashcroft Department of Justice. And the Pentagon is arguing that the proposed DOJ changes are just wrong. These next paragraphs are from Major General Thomas Romig, US Army:

3. (U) While the OLC [note: Office of Legal Counsel, part of the DOJ] analysis speaks to a number of defenses that could be raised on behalf of those who engage in interrogation techniques later perceived to be illegal, the "bottom line" defense proffered by OLC is an exceptionally broad concept of "necessity." This defense is based upon the premise that any existing federal statutory provision or international obligation is unconstitutional per se, where it otherwise prohibits conduct viewed by the President, acting in his capacity as Commander-in-Chief, as essential to his capacity to wage war. I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. If such a defense is not available, soldiers ordered to use otherwise illegal techniques run a substantial risk of criminal prosecution or personal liability arising from a civil lawsuit.
4. (U) The OLC opinion states further that customary international law cannot bind the U.S. Executive Branch as it is not part of the federal law. As such, any presidential decision made in the context of the ongoing war on terrorism constitutes a "controlling" Executive act; one that immediately and automatically displaces any contrary provision of customary international law. This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide. On the one hand, such a policy will open us to international criticism that the "U.S. is a law unto itself." On the other, implementation of questionable techniques will very likely establish a new baseline for acceptable practice in this area, putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades.

In other words, (in the paragraph numbered 3) the DOJ/OLC argued that if any soldiers were actually brought up on charges (either UCMJ - military law - or civilian arrest, or lawsuit), that a valid defense is that any law or international treaty (this is the paragraph numbered 4) that hampers the President's powers as Commander-in-Chief is by definition unconstitutional since those powers (according to the DOJ reading of the constitution) cannot be abridged or restrained. The Pentagon here is formally rejecting that logic, arguing that it wouldn't stand up in an actual courtroom. It is worth pausing to note that the Department of Justice seriously argued that any law or international treaty that could in any fashion affect the President's ability to order military personel to act is unconstitutional, and hence can be ignored. Any. Law. Any. Treaty. Basically, the DOJ position is that the President, as Commander-in-Chief, can order anyone military to do anything, and there are no legal restraints or punishments. Is their anyone in America who remotely remembers the phrase "separation of powers" or "checks and balances"?

Seriously, go and read the two posts by Lederman. Won't take long. This stuff frightens the living snot out of me.

Posted by baltar at July 27, 2005 11:29 AM | TrackBack | Posted to Politics


. . . or "rule of law."

Posted by: joshua at July 27, 2005 02:30 PM | PERMALINK
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