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.