Dispatches from the Creation Wars

King George III

Posted by Ed Brayton on June 14, 2004
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In the ongoing controversy over the legal advice and position of the Bush administration regarding torture and abuse of political prisoners, this is an article that everyone should read. Stuart Taylor is not a bomb-thrower by any means, and he spends the first part of the article defending the administration against some of the criticism they’ve gotten on this matter. But he is nonetheless scathing in his opinion of the now-famous leaked memo from Pentagon lawyers justifying what is, in essence, the notion of president-as-dictator:

For all that, some of the legal analyses concocted by administration lawyers are so extreme and indefensible that it’s hard to imagine them coming out of any other recent administration. I read key portions of the recently leaked memos aloud to some top lawyers from the Bush I and Clinton administrations, and they were as shocked as I am.

Most breathtaking is the claim made on pp. 20-21 of a leaked, 56-page section of a March 6, 2003, draft “Working Group Report” (PDF) prepared for Rumsfeld by Pentagon lawyers and others:

“In light of the president’s complete authority over the conduct of war, … the prohibition against torture [in the 1994 criminal statute] must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority.”

In other words, the Constitution empowers the president to give blanket authorization for yanking fingernails, branding prisoners’ genitals with red-hot pokers, or holding suspects under water almost to the point of drowning. He may do this despite the unambiguous prohibitions both in a Senate-ratified treaty signed by the Reagan administration and in congressionally adopted implementing legislation that President Clinton signed in 1994. And Bush’s (hypothetical) approval of such torture need not even be specific to a particularly important detainee such as Zarqawi; he could, the report implies, authorize torture of all suspected enemy combatants.

I cannot recall any previous president claiming such “complete authority over the conduct of war.” This claim is flatly contradicted by the language of the Constitution and by Supreme Court precedents, including the 1952 decision that barred President Truman from seizing the steel mills to help fight the Korean War…

The Pentagon report, prepared under the watchful eyes of the White House, built on an August 2002 Justice Department memo addressed to White House Counsel Alberto Gonzales, in response to a CIA request for legal protection for interrogators. Both memos, as well as others that have been leaked, reveal an unprecedented focus on how to defend against any war-crimes charges that future prosecutors might bring.

Among the more extreme claims in the August 2002 Justice Department memo are the assertions that to amount to torture, rough treatment of prisoners “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” and that “for purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”

These warped analyses are not just the work of a few lawyers carried away with clever circumvention of the law. They reflect an attitude deeply entrenched in the Bush White House — including Bush and Dick Cheney as well as Gonzales — that whenever the president invokes national security, he enjoys near-dictatorial powers and is quite literally above the law.

In 2002, Gonzales gave Bush the grandiose advice that he had constitutional authority to launch without a vote of Congress a major war against a nation (Iraq) that had neither attacked the United States nor posed an imminent risk. While Bush ultimately did seek and obtain such a vote, he never acknowledged his constitutional obligation to do so. The president and his lawyers have also claimed the powers to seize suspected “enemy combatants” from the streets of America for indefinite, incommunicado detention and interrogation, without meaningful judicial review or access to lawyers; and to do the same to non-Americans at Guantanamo Bay without answering to any court in the world.

These perversions of the law would allow Bush to seize, imprison, and torture anyone in the world, at any time, for any reason that he associates with national security. Little did the Framers suspect that their Constitution would be twisted by a president to claim powers more appropriate to Roman emperors, Russian czars, and King George III.

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  1. #1 Dan
    June 14, 2004

    We live, it seems, in the generation of political scandals. I was a young teen during Watergate, and I remember the sense of shock and outrage that was expressed on the evening news. While it brought Nixon down, in retrospect, it really came down to Dirty Politics, which unfortunately means “business as usual” in DC anymore. Watergate was petty crime with lies to try to cover them up.

    Iran-Contra never really captured my attention that much. I confess to being a Reagan fan; I liked him and I trusted him. Though the Administration’s Iran-Contra activities were illegal, it was easy for me to forgive him. Like so many things Reagan did, even if they were occasionally over the top, his heart seemed to be in the right place. The country seemed rather quick to forgive.

    Clinton’s antics were an embarrassment, to be sure. Yet the country and the world saw Monicagate for what it was: one man’s incredible weakness, not reflective of the nation or the principles for which we stand. To borrow Reagan’s words, the United States was still the shining “city on the hill.” We shook our heads and moved on.

    Along comes George W. Bush, with promises to restore honesty, integrity, and accountability to the White House. We should have known from the start that something was seriously wrong when it took something approaching a constitutional coup to put him in office. Things have gone steadily downhill since then. The Bush Administration transgressions go beyond Dirty Politics. And it clearly isn’t a case of one man’s weakness that doesn’t reflect upon our nation. We’ve seen a consistent pattern of disrespect for the very principles on which our nation stands: liberty, equality, respect for the rule of law, and government of, by, and for the people. The torture and abuse scandals, and everything related to them (e.g., the memos) make it clear that we’re about to cede (if we haven’t already) whatever claim we might have had to the moral high ground. Once you’ve taken the first step down that slippery slope, its difficult to turn back. Bush likes to say its “Us versus Them.” What, exactly, is it that separates Us from Them?

    The right may call me anti-American, or unpatriotic, or a flaming liberal, or whatever. I’m not any of those things. My politics, fiscal and social, tend to be rather middle-of-the-road, like I believe most Americans tend to be. I’m as flag-waving and patriotic as the next American. I’m also saddened. I never thought I’d live to see the day when these kinds of things would, or could, happen in America. We used to be the kind of country that other countries aspired to be; people wanted to come here because of what we stood for. I’m not so sure of that anymore. Perhaps I’m just naive — maybe this stuff has been going on forever, and we’ve just not been aware of it. But I doubt it. Something has changed. We’ve become meaner, more cynical, and altogether too willing to abuse the incredible power that comes from being the world’s only remaining superpower.

    There are lots of things about this country about which we can, and should, be proud. But I think its time we took a serious look at ourselves. Do we really like what we’ve become?

    Sorry to rant.

  2. #2 Ed Brayton
    June 14, 2004

    No need to apologize, Dan. I think your sentiments are much like my father’s. He’s a lifelong Republican, but he is more and more outraged by the corruption of this administration. It may be easy to dismiss people like me as flaming liberals, though the truth is that I loathed Clinton as much as I do Bush. But they’re starting to lose others as well – military vets who are pissed off at the administration for sending so many troops into battle without adequate protection or weapons; middle of the road folks who are tired of their constant pandering to the religious right; former spooks like a friend of mine who lives near me, who is a retired NSA agent and is absolutely livid at the damage this administration has done to the intelligence agencies, not just with the outing of Valerie Plame but with the obviously dishonest use of intelligence information to spin a case and then blaming it on the intelligence agencies when it backfired on them. These aren’t liberals and they can’t be dismissed out of hand.

  3. #3 Old Ranger
    June 14, 2004

    We mustn’t exaggerate the significance of this, but it is serious stuff. Hamilton felt that the strong will always try to take advantage and must be restrained by countervailing forces. He expected the Senate to restrain the executive, because Senators would be appointed by the states and not elected by the rabble. That didn’t last; none of our founding fathers would have liked the Congress we have today, people for whom politics is a lifetime pursuit and staying in office is the # 1 goal. Congress is too easily bought by donations. People can and should object to this baloney about the inherent powers of the Presidency and the need to throw people in jail without lawyers if they seem suspicious to the Feds.

    The only real hope is to get a better Congress. I fear that this would require changing the Constitution. Remember that Rome went from a republic of sorts (The senate was never democratic) to an empire. That can happen here. Although I admire Truman over all, I think that failure to ask Congress for a declaration of War when North Korea invaded the South was a serious error, the first of many erosions of Congressional power. Truman should have asked and Congress should have demanded it.