The Nixonian Roots of Bush's Torture Memo

Bruce Shapiro, in the Nation (June 25, 2004):

It is April of 1970. President Richard Nixon, frustrated with the Vietnam War, orders tens of thousands of US and South Vietnamese troops to invade neutral Cambodia. He launches his new war--and widens his bombing campaign--without consulting an outraged Congress. Demonstrations engulf campuses and cities. Aides to National Security Adviser Henry Kissinger quit in protest. And at the Justice Department, an assistant attorney general named William Rehnquist, in charge of the Office of Legal Counsel, makes a case for the legality of Nixon's new war in a white paper,"The President and the War Power."

It is half a lifetime from that spring to this one, and half a world from Cambodia to Iraq. The historical chasm abruptly collapsed, though, with the release of the memo on torture written for the White House in August 2002 by Assistant Attorney General Jay Bybee, Rehnquist's latter-day successor at the Office of Legal Counsel. What do Nixon and Cambodia have to do with the beatings and rapes at Abu Ghraib? Ask Bybee, because it is his memo that makes the comparison with Cambodia and Rehnquist, a comparison that lays open the deeper motivations, goals and implications of the Bush Administration's interrogation policy.

The Bybee memo attempts to erect a legal scaffolding for physical and psychological coercion of prisoners in the War on Terror. Coming from the Office of Legal Counsel, it holds the authority of a policy directive. The memo proposes so finessed and technical a reading of antibrutality laws that all manner of" cruel, inhuman or degrading" interrogation techniques--including beatings and sexual violations like those in Abu Ghraib--simply get reclassified as Not Torture. The memo's language so offends common sensibility that within a few days of its release, White House officials were disavowing its conclusions and selectively declassifying documents allegedly showing the President's commitment to humane treatment of prisoners....

It is in defense of his view of the Commander in Chief's legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist's 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.

One glance at the Rehnquist documents and it is easy to see why his 1970 reasoning resonates throughout the Bush Administration's 2002 and 2003 memorandums. Just as Bybee finds that torture isn't torture, Rehnquist argued that the invasion of Cambodia wasn't really an invasion:"By crossing the Cambodian border to attack sanctuaries used by the the enemy, the United States has in no sense gone to war with Cambodia." The Bybee memo offers officials accused of torture the"necessity" defense; in 1970, Rehnquist argued that pursuing Vietcong troops into previously neutral territory was"necessary to assure [American troops'] safety in the field."

In particular, Rehnquist offered the Nixon White House a bold vision of the Commander in Chief's authority at its most expansive and unreviewable: The President's war power, he wrote acerbically, must amount to"something greater than a seat of honor in the reviewing stand." Cambodia--where the devastation of the war and the Nixon Administration's carpet-bombing following the invasion would prepare the way for the Khmer Rouge holocaust--amounted to"the sort of tactical decision traditionally confided to the commander in chief."

For Rehnquist, the invasion of Cambodia in May of 1970 was a dual watershed. On the one hand, it marked the greatest assertion of expansive presidential warmaking power, crystallized in the white paper cited by Bybee. At the same time, protests against the Cambodian invasion led Nixon to centralize the gathering of domestic political intelligence directly in the White House; Rehnquist supported this domestic expansion of executive-branch authority, arguing in court for no-knock entry, preventive detention, wiretaps and other ancestors of today's Patriot Act.

The authority of Nixon and his successors was soon curtailed--at least on paper--by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers--among them Rehnquist, Rumsfeld and Vice President Dick Cheney--have repeatedly sought to regain the expansive presidential power asserted in Rehnquist's memo.

This is what is really at stake in the torture scandal....