Blogs > Liberty and Power > A Government of Monsters

Jun 7, 2004 2:45 pm

A Government of Monsters

We have officially passed into extraordinarily dangerous waters. The government expended a great deal of time and money (your money) to make certain it could engage in torture, and that no one would suffer any legal consequences whatsoever:

Bush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department.

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.

The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities. In a March 6, 2003, draft of the report reviewed by The Wall Street Journal, passages were deleted as was an attachment listing specific interrogation techniques and whether Mr. Rumsfeld himself or other officials must grant permission before they could be used. The complete draft document was classified"secret" by Mr. Rumsfeld and scheduled for declassification in 2013. ...

A Pentagon official said some military lawyers involved objected to some of the proposed interrogation methods as"different than what our people had been trained to do under the Geneva Conventions," but those lawyers ultimately signed on to the final report in April 2003, shortly after the war in Iraq began. The Journal hasn't seen the full final report, but people familiar with it say there were few substantial changes in legal analysis between the draft and final versions.

A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture -- to assert"presidential power at its absolute apex," the lawyer said. Although career military lawyers were uncomfortable with that conclusion, the military lawyer said they focused their efforts on reining in the more extreme interrogation methods, rather than challenging the constitutional powers that administration lawyers were saying President Bush could claim.

. . .

After defining torture and other prohibited acts, the memo presents"legal doctrines ... that could render specific conduct, otherwise criminal, not unlawful." Foremost, the lawyers rely on the" commander-in-chief authority," concluding that"without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority" to wage war. Moreover,"any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the commander-in-chief authority in the president," the lawyers advised.

Likewise, the lawyers found that" constitutional principles" make it impossible to"punish officials for aiding the president in exercising his exclusive constitutional authorities" and neither Congress nor the courts could"require or implement 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 serve as evidence, since authority to set aside the laws is"inherent in the president."

. . .

For members of the military, the report suggested that officials could escape torture convictions by arguing that they were following superior orders, since such orders"may be inferred to be lawful" and are"disobeyed at the peril of the subordinate." Examining the"superior orders" defense at the Nuremberg trials of Nazi war criminals, the Vietnam War prosecution of U.S. Army Lt. William Calley for the My Lai massacre and the current U.N. war-crimes tribunals for Rwanda and the former Yugoslavia, the report concluded it could be asserted by"U.S. armed forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful."

It thus appears that we are no longer a nation of laws, and not of men -- since"authority to set aside the laws is 'inherent in the president.'" Moreover, our government officially encourages members of our own military to use the Nuremberg defense, that they were just"following orders." And it doesn't matter that their conduct might go"so far as to be patently unlawful" -- since the President can set aside any laws he chooses, at his own discretion.

What the hell happened to the United States of America?

(I discussed certain of the psychological mechanisms underlying this phenomenon here, here and here; and there is much more about these issues here, and some more here.)

(Cross-posted at The Light of Reason.)

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More Comments:

Jonathan Dresner - 6/7/2004

The phrase "Nuremberg defense" stems from the fact that it was, to date, the most prominent use of that defense. Of course it failed, which is why the phrase is almost always used derisively. That it is used seriously in the material Mr. Silber cites is even more troubling, and evidence of his primary thesis: we have lost what little souls we had left.

Arthur Frederick Silber - 6/7/2004

I didn't say that it was valid, or that it worked. In fact, the Billmon post that I link to discusses the fact that it did NOT work. It's just referred to that way descriptively. But this administration appears to determined to make it work, when coupled with Bush's "ability" to declare laws null and void as he chooses.

David Gross - 6/7/2004

When did people start calling this the "Nuremberg defense" as if the Nuremberg tribunal had enshrined the "just following orders" excuse as a valid legal argument?