Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo)

I have read a redacted copy of the first 56 pages of the Torture Memo (alternate source). The memo — or at least the approximately half of it we have — sets out a view as to how to make legal justifications for the torture of detainees unilaterally labeled by the government as “unlawful combatants”, including (but not limited to?) al Qaida and Taliban detainees in Guantanamo.

Here are my initial comments on some of the main points, especially those regarding Presidential powers and international law. I've concentrated on those parts because those are the relevant issues I think I know the most about; in contrast, I say little here about the direct criminal law issues. I wrote this in a hurry, so please treat these as tentative remarks. I look forward to discussion with other readers, and will post amendments and corrections when they are brought to my attention.

1. The memo begins by noting, accurately, that our international obligations include a commitment to refrain from actions that would be 'cruel and unusual punishment' under the Constitution. This acknowledgment does not, however, infuse much of what follows.

2. The memo notes that Justice Department opined in a separate memo dated January 22, 2002, Re: Application of Treaties and Laws to al-Queda and Taliban Detainees, that customary international law “cannot bind the Executive Branch under the Constitution because it is not federal law” and in particular clear executive decisions would be “controlling” law that would trump customary international law. [Note: The Jan. 22 memo cited here seems related to the Gonzales memo of Jan 25, but to be a separate document — is a copy available anywhere?]

In my opinion, the first part of this statement about customary international law is directly contrary to the Restatement (3rd) of Foreign Relations Law of the United States § 111(1) — although I suppose a reasonable person might conceivably disagree. The second part is simply weasel wording: Compliance with customary law is an international obligation of the US, but not always a domestic obligation. It's agreed that Congress can constitutionally legislate in a way that would violate our international obligations, although as a matter of construction courts presume it has not done so unless the Congressional intent to violate international law is explicit. It's not generally agreed the President can do this unilaterally, especially since the Supreme Court declared that “international law is part of our law” in The Paquete Habana (1900).

3. As previously noted by the WSJ, the memo argues (accurately, in my opinion) that the Torture statute, 18 USC § 2340, applies only to conduct outside the US, then it argues (plausibly) that Guantanamo is inside the US for jurisdictional purposes, hence not within the zone covered by § 2340. As I noted previously, this analysis conflicts with the position the US government took regarding Guantanamo before the Supreme Court. (But I actually think the memo has it right, and the US litigation posture wrong.) The memo argues that the two positions can be reconciled, which again is technically correct—they can be read that way—but I think it would be wrong to read them that way, and it's certainly not compelled.

4. Then there's a long discussion of what is or isn't torture, with much fine parsing of the torturer's intentions, all of which seems designed to bend over backwards to suggest that hurting people a whole lot to the point of damage is fine if you do it with the right spirit. I cannot bear to summarize all this; it is too painful. I have never seen a better demonstration of the first part of the saying that “the letter killeth, but the spirit giveth life,” an ironic property given the identity of the lead author.

5. The discussion of Presidential powers begins (page 20) with the observation that in the exercise of the commander-in-chief function, and in particular in the conduct of operations against hostile forces, the President enjoys “complete discretion”. That the President's powers are at their greatest in these circumstances cannot be disputed. But while the discretion is indeed very great, I do not see how it could possibly be read to include the authority to commit war crimes, even pre-Nuremburg. And today it clearly cannot include that authority, at least without explicit Congressional authorization. Thus, the entire discussion of Presidential power is based on a premise so false that any student who has taken introductory International Law should be able to recognize its error. And as any logician will tell you, when you begin with an erroneous premise, you are in trouble.

6. A similar error infuses the paper's discussion of the application of the Torture statute, 18 USC § 2340, to actions on the field of battle or activities ancillary to battle. On p. 21 the paper states that the President's military authority to run a campaign means that the Torture statute “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority” (i.e. all military interrogations in wartime) because — I am not making this up, they are — “Congress lacks the authority to under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.” In short, according to this memo, on the field of battle the President's authority is absolute (recall that the English commander-in-chief was an official who reported to George III). “Congress may no more regulate the President's authority … to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

This is clearly wrong on the Constitutional level, and quite probably a bad analogy. It is clearly wrong to suggest that Congress exceeds its authority when it implements an international treaty obligation against torture, even if this has the result of reducing otherwise extant Presidential power. This is because under Article VI of the Constitution, international treaties “shall be the supreme Law of the Land”. We've known that this means what it says since at least Missouri v. Holland, if not long long before.

It is generally agreed — and I certainly believe — that Congress has no role in dictating battlefield troop movements, or the choice of field commanders (as opposed to its constitutional role in approving promotions). Conversely, under the Constitution, if not always in real life, Congress does get to choose who we attack. And Congress does have a say in the methods by which we wage war, both via the spending power and via its constitutionally prescribed role in setting the rules of military justice. If Congress passes a law that says it's a criminal act for a soldier to thumb his nose at a prisoner, or carry a type of weapon, that's a valid law, and the Commander in Chief authority cannot trump it. To argue otherwise is to say that were Congress to decide that we should not make a neutron bomb, as it did, the President could nonetheless decide to make one, and use it on the battlefield. Similarly, were Congress to pass a law that said nuclear weapons could only be used if certain conditions had been met, under the Constitution the President would not have the authority to ignore that limitation.

But that's all beside the point. Even if we were to accept that the President has unlimited authority over the battlefield, it in no way follows that this authority extends to Guantanamo, which is far removed from it. The memo treats this as given. It is anything but given.

Page 23 really goes off the rails, making an argument popular with the Federalist Society, but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power. The so-called “unitary executive” argument is set out most clearly in a Harvard Law Review article, Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992). My explanation as to why this article is profoundly wrong and dangerous can be found at A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 Nw. L. Rev. 1346 (1994), which in turn sparked separate and not entirely consistent answers from each of the two authors of the Structural Constitution article. My rebuttal article Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) is also online.

On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with “enemy combatants”. The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.

7. The draft returns to the theme of cruel and unusual punishment around page 35, grudgingly noting that although Gitmo detainees have no constitutional rights since they are foreigners, the US nonetheless can't subject to them to acts that would be 'cruel and unusual' due to our obligations under the Convention Against Torture. Having said that, the memo notes that what is cruel and unusual is not a hard and fast rule (I'd add “in all cases”, since I think some things are per se cruel and unusual), and what is forbidden may depend on the circumstances. Having constructed this loophole — which to the extent it exists is not designed to allow coercive questioning — the memo then tries to squeeze through it, noting in its Eight Amendment analysis that the “government interest here is of the highest magnitude” (p. 38) and hence things that might be excessive force in other circumstances might not be here. But it doesn't come to any specific conclusions about what's in and what's out.

8. There's an extensive discussion of various criminal and civil statutes that might land a torturer in hot water, but I'm going to skip over those. Similarly, I'm not going to discuss the UCMJ provisions cited on pages 47-51, except to note that the UCMJ is a congressional enactment, pursuant to its constitutional powers. Indeed, as the memo notes, “even in war limits to the use of force exist” and these are enforced by the military justice system.

The memo is ambiguous as to whether it argues that the UCMJ is an infringement of the President's supposed plenary power of the military. Failing to make this argument would expose the flaws in its own reasoning that the President is subject to no legal constraint in his prosecution of a war and in any ancillary activities relating to it. On the other hand, arguing the UCMJ is invalid is obviously nuts. Here's what the memo says on the subject of the President unilaterally overruling the UCMJ (p. 53):

“Legal doctrines could render specific conduct, otherwise criminal not unlawful.

See discussion of Commander-in-Chief Authority, supra.

Oddly, there's no mention of the Constitutionally proper means by which a President could in fact overrule the UCMJ — by exercising the Pardon power. (Perhaps it's not so odd — unitary executive partisans don't want to admit that the Pardon power is how the President balances Congress's lawmaking power; they'd rather have the President in effect legislate.)

9. The final section of the 56 pages in the version posted online (there's obviously lots of the memo left to be found), discusses the very reasonable rules in fact used heretofore by the US armed forces. Unlike the authors of this memo, the folks on the sharp end eschew physical torture, preferring interrogation techniques that sound a lot like what the cops do down at the station.

10. This memo is labeled “draft”. Even so, if the second half is like the first, then everyone who wrote or signed it strikes me as morally unfit to serve the United States.

If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, “I was just following orders” is NOT (and should not be) a defense.

[Note: I have corrected the paragraph numbering and a number of typos. 6/9/04 10am]

This entry was posted in Guantanamo, Law: Constitutional Law, Law: International Law, Torture. Bookmark the permalink.

120 Responses to Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo)

  1. Pingback: TalkLeft: The Politics of Crime

  2. Evelyn Blaine says:

    It is to be remarked that, amidst pages of handwaving, vague references to dicta, and regurgitations of expansive theories of executive authority from Op. O.L.C., the authors of the memo nowhere mention the one obvious precedent – the Steel Seizure case.

    And for good reason – it blows their analysis right out of the water. Consider than the famous tripartite schema passage in Justice Jackson’s concurrence, familiar from every con-law textbook: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Youngstown Co. v. Sawyer, 343 US 579 at 637-8.

    The federal anti-torture statute, 18 USC 2340 et seqq., is about as good an example of the “express … will of Congress” as one could ask for — and one clearly made under an expressly designated congressional power (Art. I, sec. 8, clauses 10-11). Does one actually have to be able to read the Constitution to go to work for the DOD legal division, or is that now optional?

  3. Frederick says:

    Great piece. These people are lawless, evil sons of bitches (or maybe it should simply be “bitches,” since as you note the lead author is a woman). Comparisons to the Third Reich are not out of line. We have to remove this evil regime from office — and, as you say, prosecute anyone who actually acted on this memo.

  4. nick says:

    Is it a more nuanced phrasing to say that the Constitution does not make the President a pre-1689 Bill of Rights King? Given the legal (and linguistic) relationship between the two documents, I see in this argument the kind of counsel that James II might have received, as a correspondent to Phil Carter’s site points out. That’s to say, the Framers were definitely thinking of 1688, John Locke, and reasserting the antidote to the malaise of arbitrary power.

    This is a polite way of saying that, as a student of seventeenth- and eighteenth-century history, I’m fuming here. And truly alarmed.

  5. fiat lux says:

    The words that come to mind are “Orwellian” and “Kafkaesque”.

    Also, damn scary.

  6. Pingback: Get Your Blog Up

  7. Pingback: Fiat Lux

  8. DNS says:

    The question, for me, is whether the coherence and frightening power of this analysis can be brought to the attention of those who still think Bush is doing a good job. Someone somewhere has to figure out how to shout this from the mountaintops so that NO ONE in this country can escape its devastating implications. In other words, how can we FORCE the people who listen to Limbaugh to hear this?

  9. Pingback: USA Watch

  10. renato says:

    OK pardon the blogwhoring but I read pages 19-23 and blogged it. I’ve skimmed the following pages which give defenses for those doing the actual interrogating. Here’s the sentence tying the two together, which I like to call the, “I was just following orders” defense:

    As this authority is inherent in the President, exercise of it by subordinates would be best if it can be shown to have derived from the President’s authority through Presidential directive or other writing.

    I think it is perfectly acceptable now to call these SOBs ‘nazis’, since they are using the Nazi’s Nuremberg defense.

    Anyway, back to my blogwhoring, I am just a layman though a rather intelligent one, and I was struck at how I came to several of the same conclusions you did. The document basically argues for the President as King when there’s a war going on, and whatever he construes to be aiding the cause of the war, even if it violates the law, is okely-dokely by the Constitution. Congress and the judiciary, however, are limited.

    I really don’t think that the Founding Fathers intended to create a Republic where the legislative and judicial branches were subordinate to the executive branch. In their day, they would have called that a monarchy. In our day, we’d call it dictatorship.

    Fucking Nazis.

  11. renato says:

    condensed version of the “torture memo”:

    It’s good to be the King!

  12. Pingback: Southpaw

  13. Jerry says:

    ” Conversely, under the Constitution, if not always in real life, Congress does get to choose who we attack.” NOT ALWAYS?! For all the tens of thousands of American lives lost and hundreds of thousands severely wounded on the battlefield, for all the wealth expended, for all the good things undone that could have been done here at home with those lives and that treasure, we have NOT been in a Congressionally declared war (and as I read the constitution, that means we haven’t been at war at all, Gulf of Tonkien resolution and other cowardly weasling by sucessive congresses notwithstanding) for sixty years.

    Does that then mean that the current administration believe WWGR applies whenever the President takes it in his head to send troops someplace?

    Most frightening to this layman is the idea that the Memo applies in Guantanemo, that is, effectively US soil. It seems a short hop to applying it withing the 50 states. Brandon Mayfield may well have been encouraged to confess before it became obvious he had no relationship to the Spain bombings. After all, it is a ‘War’ on terror, yes?

  14. Mark Arthur says:

    Whatever else we say about these guys (the authors, the memo’s commissioners), shouldn’t we also say they’re just (legally, historically, culturally) dumb? And how dangerous can such dumb people really be? (dangerous question but…)

  15. Stuart Strum says:

    Well, see, it’s not that that torture is not illegal per se, it’s just that there’s No Controlling Legal Authority

    bwahahahahahaha!!!!!!

  16. Duke of Earl says:

    Hey, Evelyn, when you find yourself beginning sentences with phrases like “it is to be remarked that,” it’s a sign of too much law school. Take a vacation.

  17. Phoenix Woman says:

    Evelyn: Very good catch. And irrefutable. (Which is why the trolls can’t attack you on the merits of your argument, but must instead mock your excellent command of the English language.)

  18. Michael, a very fine analysis. Thank you for taking the time to do this work, unrewarded though it may be by university administrators – it is very, very important and your contribution is essential.

    Bryan Pfaffenberger
    University of Virginia

  19. Claire says:

    Apropos to DNS’s post – wouldn’t it be possible to gather a group (not unlike those who posted to this thread – excluding me – I don’t have the brains for it) and write a cohesive, non-aggresive and bi-partisan “advertisement” that could be published in a newpaper or submitted for publication by one of the 527′s? The blog forums are great, but they are hidden… I’m sure the funds for a page in the NY Post or some-such could be scraped up from the readers/contributors (that’s where I would feel comfortable contributing) – and just think – any rejections could be published at some point as well, exposing the “conservative” media for what it is.

  20. Jake Nelson says:

    This is insanity, treason, and stupidity all at once. The Founders would hang these people.
    For that matter, note the following:

    38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purposes.

    39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

    40. To no one will we sell, to no one will we refuse or delay, right or justice.

    That’s from the Magna Carta. In 1215, a monarch still claiming the Divine Right of Kings showed greater concern for justice and equity under the law than these people.

    I also note from it:

    45. We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.

    THAT sure as hell hasn’t happened here, given how blatantly obvious it is that what these people advocate is not only unconstitutional, it’s anti-constitutional.

  21. Pingback: Hyperion Court

  22. Romdinstler Jones says:

    A dictatorship would be a heck of a lot easier, there’s no question about it, ” [Bush] said. — Business Week, July 30, 2001

    -Romdinstler

  23. Romdinstler Jones says:

    Professor Froomkin:

    Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society.

    This had already happened even before the memo under discussion was written, according to today’s LA Times:

    “…just weeks after the Sept. 11 terrorist attacks, the U.S. was desperate to find terrorist leader Osama bin Laden. After Lindh asked for a lawyer rather than talk to interrogators, he was not granted one nor was he advised of his Miranda rights against self-incrimination. Instead, the Pentagon ordered intelligence officers to get tough with him.

    The documents, read to The Times by two sources critical of how the government handled the Lindh case, show that after an Army intelligence officer began to question Lindh, a Navy admiral told the intelligence officer that “the secretary of Defense’s counsel has authorized him to ‘take the gloves off’ and ask whatever he wanted.”

    Lindh was being questioned while he was propped up naked and tied to a stretcher in interrogation sessions that went on for days, according to court papers.”

    -Romdinstler

  24. Pingback: No Cash Value: A Weblog of Little Consequence

  25. Andy says:

    My own favorite shocker is at page 24:

    “Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.”

    So, the President can break ANY LAW IN THE BOOK if he “believes” is would prevent him from gaining intel that would “prevent” attacks.

    I think this memo may be a test of whether our Republic can survive. If the media concentrate on this, if the public is outraged, if the persons responsible are forced to resign … then we can still claim to be living in a free republic. If not, not.

  26. Eli Rabett says:

    Well, since this was written by a member of the bar, and you folk are some, how about bringing them up to the Bar for disbarment on the grounds that they were abetting felonies. Prove Shakespear wrong for once.

  27. fiat lux says:

    Eli may be snarky but he’s got a point. Is it possible to call any of the lawyers connected to this document up for disbarment?

  28. Thomas says:

    The Good Professor says that the “unitary executive” idea is popular with the Federalist Society, but isn’t taken seriously by mainstream academics. But that’s not quite right, since presumably The Good Professor didn’t take the time to write 3 articles on a topic that he didn’t take seriously. If he did, he’s a silly man, since an appropriate response to a silly idea is dismissal or contempt, not spirited refutation over the course of several articles. And even then, one might wonder: isn’t Calabresis a mainstream academic? Further, one might be struck by the fact that The Good Professor sought help during the drafting of New Vestments from people (“Akhil Reed Amar, Caroline Bradley, Erwin Chemerinsky, Sharon Keller, Bernard Oxman, Robert Pushaw, Jonathan Simon, Alan Swan, and Steve Winter”), most of whom I would call “mainstream academics.” Strangely, The Good Professor notes that “at least one of them disagrees strongly with my views.”

    Well, I do hope that whoever it is on that list realizes that they’re wrong. But not just wrong: anyone who follows their advice may well be committing a “high crime or misdemeanor.”

    I’d hate to get in a disagreement with The Good Professor. Not only is he likely to take out after me for several articles, but, in the end, if he hasn’t persuaded the profession, he’d accuse those who agreed with me of acting unethically and/or criminally! So much for simple academic disputes!

  29. jonquil says:

    Thanks for the analysis. I needed to be reassured that the law didn’t say what the President’s people think it says.

  30. andrew says:

    One question: Who are the others lawyers who signed off on the draft? What are their qualifications?
    One comment: Are military lawyers as thick as, say, military doctors? Who goes into the military if he/she has a decent law degree? Is one right to assume these are not the sharpest knives in the legal box?

  31. DNS says:

    Re: disbarment. As an attorney, I feel quite sure that members of the appropriate bar (D.C.) could initiate the proper proceeding, but I believe this would never happen. The issues — the context — are simply too political. [Who in Washington would take this stand, however noble, against this administration?] Sadly, I see the only recourse being publicity (e.g. the newspaper ad suggested by Claire), constant pressure on our representatives, and finally, through this pressure, a political solution — e.g. congressional and senate hearings, subpoenas, censure, and possibly impeachment.

    This is the kind of situation which reveals just how indistinct is the boundary between law and politics: although the law clearly condemns such conduct (by Bush, Rumsfeld, et al.), there is probably no legal remedy — I mean one that we could realistically expect. From an academic perspective, it’s fascinating; to a concerned citizen, though, it’s profoundly depressing.

  32. Romdinstler Jones says:

    The Good Professor says that the “unitary executive” idea is popular with the Federalist Society, but isn’t taken seriously by mainstream academics. But that’s not quite right, since presumably The Good Professor didn’t take the time to write 3 articles on a topic that he didn’t take seriously. If he did, he’s a silly man, since an appropriate response to a silly idea is dismissal or contempt, not spirited refutation over the course of several articles.

    Perhaps The Good Professor’s intended audience for those articles were fringestream academics and not mainstream ones. Or maybe he had no specific audience in mind at all and penned them merely to set his ideas down in permanent form to be read – or not – by anyone (or no one) who happened (or didn’t) to amble along later on? Isn’t that what most academics do? Or is such activity confined to just the silly ones?

  33. Pingback: No Cash Value: A Weblog of Little Consequence

  34. Andrew J. Lazarus says:

    Forgive this non-lawyer if he is wrong, but here’s my take on why the memo doesn’t invoke the Pardon Power. With pardons, Benito Bush can give get-out-of-jail-free cards to the political-hack senior officers and the depraved low-level torturers, but he can’t make others do his criminal bidding. Under the memo’s theory, Adolf Bush can transform orders to torture, massacre, and even exterminate (that is, absolutely anything) that used to be, oh so quaintly, considered war crimes and crimes against humanity into lawful orders and require the entire US military to compromise itself on penalty of insubordination.

    Does this make sense to the legal fraternity?

  35. Pingback: Politalkback Weblog

  36. Paul Kwiatkowski says:

    I would just like to say that the American Empire is falling down.

    What are we the people going to do to stop our own demonic bloodthirsty leaders from taking us all the way to hell without a return ticket?

    Let´s see a blow job is a no no, but rape, torture and pre-emption is as american as apple pie.

  37. Vincent says:

    From Enemy Of The People:

    This particular memorandum fails what I’ll refer to as the “Mengele test”: would notorious Nazi torture doctor Josef Mengele be guilty under U.S. law if his sadistic medical “experiments” had been undertaken pursuant to orders? The unmistakable answer in the torture memo is “no, as long as the orders originated with the commander-in-chief.” I think most Americans would be startled to realize that the Nazis’ “I was only following orders” defense is an effective defense here in the Land of Liberty, and yet that is precisely the conclusion of the torture memo.

    The memo, or more precisely the requisitioning of the memo by the Bush administration, fails a second Mengele test, as well: it cloaks perfidy in the perverted practice of an honorable profession. Mengele tortured, no matter the ridiculous claims of medical experimentation. Similarly, this memorandum, for all of its citations of law and invocation of legal principles, seeks only to justify torture. Dr. Mengele would be proud.

    This memo can’t be pinned on six or seven naive kids plucked out of their homes and families and unceremoniously dumped into the grotesque Iraqi funhouse of violence and sadism. This memo can’t be dismissed as the musings of a mid-level bureaucrat. This memo was prepared by a committee appointed by the general counsel to the Defense Department, a man who worked closely with neocon criminal Doug Feith to subvert protections against the U.S. torture of detainees, and the conclusions in the memorandum neatly rationalize the very interrogation abuses that came to pass at Abu Ghraib.

    This memorandum is the scandal. This memorandum is what should send a shiver down the spine of every American. It’s time to stop feeling smug about ourselves and realize that there is no system, no form of government, no constitution that guarantees against the defiling of a nation by its own leaders. There is only the dedication of the people to constitutional and democratic principles that can defend against the criminality of its leaders. And this is what is so scary. Because it is already apparent that a substantial portion of the American people are willing to throw all of our principles and freedoms into the fucking toilet the moment an unprincipled administration shouts “terrorism.”

  38. Victor Roberts says:

    The memoranda providing a legal rationale for the president to authorize torture, notwithstanding domestic and international law, is shocking, It’s incomprehensible that the authors of this crazy and frightening nonsense should be employed by the United States government. If the reported facts are even roughly accurate, I would rank this disclosure as among the most appalling developments I’ve witnessed in the course of 35 years practicing law.

  39. Hanna says:

    Eli: According to Neil Lewis and Eric Schmidt of the New York Times yesterday:

    Scott Horton, the former head of the human rights committee of the Association of the Bar of the City of New York, said Monday that he believed that the March memorandum on avoiding responsibility for torture was what caused a delegation of military lawyers to visit him and complain privately about the administration’s confidential legal arguments. That visit, he said, resulted in the association undertaking a study and issuing of a report criticizing the administration. He added that the lawyers who drafted the torture memo in March could face professional sanctions.

    I’m not sure what “professional sanctions” might mean other than disbarrment, although I’m sure there are lesser penalties. Meantime, I heard some rumors about a Berekely professor (whose name I didn’t catch) who was involved in drafting one of the contentious memos (not sure which), and some very stiff calls from the study body to have him fired. A friend of mine heard wind of some of the protests – anyone know more?

    Meanwhile, Andrew: You ask

    “Are military lawyers as thick as, say, military doctors? Who goes into the military if he/she has a decent law degree? Is one right to assume these are not the sharpest knives in the legal box?”

    Many (I don’t know the percentages) military lawyers do not already have a law degree when they decide to enter the military; the choose to pursue an education in law under the aegis of the military only after enlisting (or completing an officer training program, as I’m sure is more often the case). The program is highly rigorous. Please consider the work that JAG lawyers are doing on behalf of the Guantanamo detainees before you rush to judgement about a) their abilities and b) their devotion to justice.

  40. Hanna:

    I’m one of the Boalt students leading the protest against the Berkeley professor (John Yoo). Just wanted to clarify, we are NOT calling for him to be fired. We authored a petition calling on John Yoo himself to either repudiate his official position, or resign. We did NOT ask the administration to do anything; it ONLY calls on Yoo to act on his own behalf.

    That’s important, because a lot of our critics have framed our petition as an “attack on academic freedom”, blatantly contradicting the fact that Yoo has complete freedom of choice whether to ignore our demands or comply with them.

    See my blog ( http://meredicta/blogspot.com ) for more details on this stuff.

    Mike

  41. Pingback: yesh omrim

  42. paperwight says:

    The Good Professor says that the “unitary executive” idea is popular with the Federalist Society, but isn’t taken seriously by mainstream academics. But that’s not quite right, since presumably The Good Professor didn’t take the time to write 3 articles on a topic that he didn’t take seriously. If he did, he’s a silly man, since an appropriate response to a silly idea is dismissal or contempt, not spirited refutation over the course of several articles.

    Well, Mister Supercilious, the problem is that once someone manages to get some idea published, no matter how destructive or batty that idea is, you need to spend some energy slapping it down, especially if it’s destructive or batty. Otherwise, someone, like these DoD lawyers, will just pick it up and run with it, assuming that because it’s out in the world and no-one’s refuted it, it must be right. In the instant case, it seems that the DoD lawyers (consistent with the general behavior of the Bush Administration) just decided to ignore facts or arguments which went against their instinct for power and empire over accountability and democracy.

  43. Pingback: Paperwight's Fair Shot

  44. paperwight says:

    It is to be remarked that, amidst pages of handwaving, vague references to dicta, and regurgitations of expansive theories of executive authority from Op. O.L.C….

    Actually from what I’ve been able to find, the 1984 O.L.C. memo they cite doesn’t even come close to supporting the radical expansion of presidential power they want it to.

    I just finished a post on that over at my blog (and my apologies for the blogwhoring as well).

  45. ant says:

    regarding Andy’s post:
    “Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.”

    So, the President can break ANY LAW IN THE BOOK if he “believes” is would prevent him from gaining intel that would “prevent” attacks.
    ————————————-

    Forgive my poor memory, and perhaps one of the other lawyers online can fill in the blanks here, but isn’t this the argument that the 6th Circuit rejected about Nixon admin. wiretapping (barely pre-Watergate, I think) despite the government’s DOJ brief authored by W. Rhenquist? As I recall the opinion, the court rejected the govt’s argument that the president’s inherent powers as the head of state–likened to kingly authority–allowed the president to authorize warrantless wiretapping if “national security” was at issue. The court responded with something along the lines of “that’s why we had a revolution,” and rejected that position, ruling in essence that the common law of kingly authority is moot under the constitution.

    Again, my apologies if I have this wrong. I’d be glad to be corrected.

    ant

  46. Evelyn Blaine says:

    I haven’t seen the 1984 memo, but I’m sure it doesn’t. (Although I’m very suspicious of sweeping defences of executive privilege for other reasons, but that’s another kettle of fish.) I didn’t mean to imply that the prior writings of OLC were in any way as extreme as this — only that they usually tend to be maximalist defences of executive power (relative to judicial holdings or the positions of mainstream scholars and historians). When even that’ has to be stretched to the breaking point to give you cover, it’s a good sign that you’ve gone off the deep end. When you start using squeezing obscure dicta on the vesting power for all they’re worth in order to make your case, it’s a sign that you’ve thrown away the life jacket.

  47. MSN says:

    One word: Organize

  48. Pingback: A Web Undone 2

  49. T. Gracchus says:

    The memos remind me of the State Department (as I recall) legal memos in connection with Iran-Contra activities. That time the author had the excuse of almost no legal experience.
    Good work Professor.

  50. ELi Rabett says:

    Where is Judicial Watch when we really need it? Sorry folk, it seems that someone has to step up and take the flack, otherwise you are only flapping your lips.

  51. Pingback: Whiskey Bar

  52. Pingback: Whiskey Bar

  53. Pingback: Michael Parker's Journal

  54. melior says:

    “International law? I’d better call my lawyer,” the American President joked in response to a reporter’s question at the White House.

    May his god have mercy on his shriveled, blackened soul.

  55. Mojo says:

    My favorite part of the memo is the part that defines just how much torture is, as Goldilocks would say, “just right”. In III.A.1.b. they state, “The infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture” and that it “must be of such a high level of intensity that the pain is difficult for the subject to endure.” Basically this says you can do anything you want and it’s legal, so long as it’s ineffective. If it causes them to confess or give you information, that demonstrates that they couldn’t endure it and, therefore, it was torture. Wow!

  56. sam says:

    Doesn’t the memo entail that Saddam cannot be tried for war crimes under US or international law either for the torture that he presided over, at least if he were to utilize all the loopholes she constructed?

  57. Catherine says:

    I’m calling for impeachment. I’ll contact my representatives and Democratic party officials. You do the same.

  58. Pingback: INTEL DUMP

  59. Billy Smith says:

    RE: “It’s good to be the King!

    Posted by: renato at June 9, 2004 03:23 AM”

    But, it’s better to be GOD!!!

  60. Sabarte says:

    History repeats:

    During World War II, Adolph Hitler developed a particular animosity for Allied Commandos and Paratroops due to their successes in Europe, Norway and North Africa, unpredictability, effect on German morale, and his inability to devise any worthwhile counter. Raiding escalated in 1942 and included the large scale Combined Operation’s raids at St. Nazaire and Dieppe. Though the main assault on Dieppe failed, the Army Commando attacks on the flank batteries were, on the whole, successful as was the main assault on St. Nazaire.

    On October 7,1942, Hitler personally authored a note in the Wehrmacht daily communique “In future, all terror and sabotage troops of the British and their accomplices, who do not act like soldiers but rather like bandits, will be treated as such by the German troops and will be ruthlessly eliminated in battle, wherever they appear.”

    Having concluded that Commandos should be treated as the equivalent of what Bush now calls “unlawful combatants” rather than POW’s, Hitler sought out “Legal” approval for his decision.

    On October 18th, after much deliberation by High Command lawyers, officers and staff, Hitler issued his Commando Order or “Kommandobefehl” in secret, 12 copies. The following day Army Chief of Staff, Jodl, distributed copies to Headquarters with his addition advising top secrecy and distribution protocol.

    “From now on all men operating against German troops in so-called Commando raids … are to be annihilated to the last man…. Even if these individuals on discovery … give themselves up as prisoners, no pardon is on any account to be given.”

    Hitler knew that the order was illegal; that is obvious by the fact it was prepared in only twelve copies and that special measures were ordered to keep it secret. He also knew the order would be unpopular with the professional military, and the order includes measures designed to force them to obey despite their lack of enthusiasm.

    The Commando Order was used to kill hundreds and possibly thousands of Allied Special Forces and behind-the-lines operators of the OSS, SOE, and other elements. Normally they would be handed over to the SD or Gestapo, transported to a Concentration Camp, and murdered there. The first victims were seven officer men of Operation Musketoon, who were shot in Sachsenhausen on the morning of 23rd October 1942, and Commando Order executions were carried out well into the dying days of the Third Reich.

    After the war, German officers who carried out the illegal executions under the Commando Order were found guilty at war crimes trials, including the Nuremburg Trials. The Commando Order was one of the specifications in the charge against Field Marshal Jodl, who was convicted and hung.
    http://en.wikipedia.org/wiki/Commando_Order

    The Geneva Conventions had a purpose – eliminiating this brand of barbarism. But messianic tyrants will always look for ways to circumvent them, and find legal advisors to validate, and cover up their actions.

    It’s tragic we have to watch the scene replayed here in the land of the free and the brave.

  61. Pingback: apostropher

  62. Pingback: apostropher

  63. Jason says:

    There are lots of memos out there, waiting to be leaked. I don’t know who leaked the most recent one (I’d guess the State Dept or the CIA), but I’m sensing a certain progression. The leakers are media savvy. They understand the press can only handle this stuff in small doses; that the media must, in fact, assemble the case on its own for the full gravity of the situation to be realized. Force-feeding too much too soon only confuses the press. The slow feed allows editors to wallow in their own self-importance and moral indignation. They pursue stories with far more zeal when they feel they’re putting the pieces together themselves.

    I think the editors of both the WS Journal (news division) and in particular the Washington Post are aware of the existence of these additional, more damning memos. Such memos will build upon the legal rationale/justification for torture presented in the most recent memo. Such memos will, in fact, document the Bush Administration *torture policy* based on the legal rationale we already know – providing that all-important jump from theoretical to reality.

    I read yesterday’s lead editorial from WaPo as a clear, aggressive shot directly across Bush’s bow. It said between the lines: “We know torture was your official policy and we’ll prove it. We know it’s a war crime. We know it’s an impeachable offense. The only reason we haven’t pulled the trigger yet is because of the incalculable damage it will do the United States. You can still make things right by fessing up, but time is running out.”

    Think about the role of the CIA and the State Department as leakers in this situation. They, more than any others, understand the damage Bush has done to the US around the world. Moreover, they understand the magnitude of showing clear evidence to the world of a torture policy. They understand precisely how much harder this will make their jobs, and the jobs of future administrations once Bush is gone. They fear what a post-9/11 Watergate would do to the country. In this context, I see CIA and State leaking these documents only with great hesitancy and uncertainty. They desperately want the White House to take some sort of remedial action…do ANYTHING that could allow them to stop leaking. But they know, just as we know, that this won’t happen. Bush will never admit anything.

    How ironic is it that the CIA – that great underminder of the Constitution, dodger of Congress, and violator of International Law – should become the defender of democracy? Yet that’s surely become the case. It will be the CIA and State who mete out Bush’s justice. Congress has clearly shown that they will not act without the most direct, damning, and incontrovertible evidence of treasonous activity, so it’s left to the hesitant leakers to determine how much damage a second Bush term would do – and whether that damage outweighs what would result from the release of truly damning documents. What a quandary for these men, who value secrecy and power over all. These are men who would have never turned on Nixon, who for all his sins never threatened the republic. Yet Bush is making them do it.

    Why did George Tenet quit? He lost control of his troops. By siding with Bush on Iraq, he lost support from the CIA rank and file – and now that rank and file holds the key to Bush’s future. Bush no doubt hopes that a new leader and some new Agency initiatives can stem the tide of leaks. Perhaps he’ll even try to buy off the leakers – empower them and offer riches to bribe away their conscious. It’s worked before.

    All we can do is sit and wait. What will the spooks do? Only time will tell.

  64. Pingback: Crooked Timber

  65. Pingback: Crooked Timber

  66. DNS says:

    Re: Jason’s most recent post. Excellent insight. Let’s hope that those with inside knowledge have the courage to do what’s right — and to do it sooner rather than later.

  67. Pingback: Unfogged

  68. Pingback: apostropher

  69. Sam says:

    The most telling part of the document in question is the classifcation that appears on each page. If the document argues that during alleged wartime the president is above the law, and it does, should those claims not be made publicly, even if the motivation for the claim is kept classified? There was nothing to prevent John Ashcroft from going before the cameras and saying “Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States. Any questions?” But Ashcroft did no such thing, for an obvious reason: He and his boss knew that a firestorm of indignation would have resulted. Subversion of the constitution is so much easier if one keeps the subversion to oneself….

  70. Pingback: No Cash Value: A Weblog of Little Consequence

  71. bdf says:

    Others have an alternative explanation to Jason about why Tenet quit.

    Most of the Pentagon are now turning against the Bush Family Evil Empire, as did State before them. And the CIA’s dislike of Bush became very intense after Plame was outed. As Jason says, stuff is being leaked in ever-increasing quantities. Whether this is so as not to confuse newspaper editors and readers or whether they are trying to do the minimum damage that will get George to quit is unclear. Probably the latter, because my belief is that if Bush were impeached, the full extent of his evil crimes would come out and make the tortue issue seem trivial by comparison.

    Anyway, back to the plot. Others have pointed out that while Tenet kept his job he was not permitted to testify against the President because of separation of powers but that now he is no longer employed by the executive he is free to testify. It could be that Tenet resigned in order to be able to bring down the Bush regime. We can but hope…

  72. Jason says:

    A few thoughts on why memo leakers in the CIA and State Department might hesitate to fully expose Bush’s crimes to the national media despite the obvious damage he’s doing to US interests around the world and at home…

    First and foremost, the leakers may be afraid of deeply damaging our republic. They may fear a dramatic failure of the apparatus of U.S. government, resulting in significant damage to the Constitution and our status as a free and democratic society. What if, for instance, the Congress failed to impeach Bush even when faced with complete and undeniable *proof* of his guilt? Would the precedent set by such a failure be worse than the crime itself? The long-term effects could be to set Bush’s autocratic impulses in stone, forever changing the nature of the presidency. Don’t think it can’t happen. Who was the last President to ask Congress for a true declaration of war, as the Constitution demands? If Bush’s authority is challenged and that challenge fails, the power he’s sought could become permanent executive privelege.

    With a Republican-controlled House and Senate, and a public seemingly divided (or at least disinterested) on issues of torture and executive privilege, who would be shocked if Bush got away with brazenly breaking numerous laws, even if he was caught red handed?

    The job of the CIA and State Department is to think about countries. They analyze the strength of a nation’s government, the leanings of its people, and the stability of the society as a whole. When they look at America, what do they see? Is it a strong, vibrant democracy – or is it a country with an increasingly xenophobic, paranoid, and polarized population that’s obsessed with violence, increasingly undereducated, hopelessly cynical about government and the courts, and deeply suspicious of those with opposing political views? It’s possible these analysts see a country that, post-9/11, doesn’t have the strength to withstand a scandal of Watergate proportions – particularly if the scandal stars George Bush instead of Richard Nixon (who stepped down voluntarily).

    From this perspective, simple notions of morality (right versus wrong) become insufficient. Leakers from the CIA or State might *know* that allowing Bush to continue his current course is morally wrong on every level – yet their desire to protect the country from deeper and more fundamental damage may override these beliefs. They may be asking themselves: if we push all our chips to the middle of the table and tell the *whole* story, will the Congress and American people rise to the occasion? Unlike Nixon, Bush would need to be forcibly removed from office, possibly in handcuffs. And if the image of a sitting President in handcuffs isn’t disturbing enough, imagine what would happen if the effort failed. What would Bush’s second term look like if he survived the CIA/State leakers’ best shot and no longer had to worry about re-election?

    The American public is fickle. It rallied around Clinton when it thought impeachment was unjustified. If Bush draped himself in the flag, said he was “defending America,” and challenged an impeachment head on, who says he doensn’t win the impeachment AND the election?

    At some point the free press must step in. Can the national media construct a clear enough narrative from the leaked documents to persuade the American people to care? Is the media capable of framing the debate in a way that *forces* the Republican Congress to pursue impeachment if appropriate evidence surfaces? Can the press distract itself (and America) from Kobe Bryant and Michael Jackson for long enough to truly dig and connect uncomfortable points? Can the press demonstrate the tenaciousness and sense of duty it showed during Watergate? Elements of the press would certainly do their part, but it would need to be a united effort.

    If I’m leaking documents from the CIA or State Department, here are my choices:

    1. Continue leaking documents piecemeal while hoping the press can get the American people’s attention – while effecting Bush’s approval rating just enough for Kerry to win in November.

    2. Begin leaking truly damning documents that clearly demonstrate the crimes Bush has committed – in effect challenging Congress to impeach, the press to keep pace, and Americans to wake up.

    3. Decide that American simply isn’t capable of handling this mess at this point in history – in effect aiding Bush in the cover up, despite knowing it’s wrong.

    Right now, I think they’re going with Option 1: Leaking info piecemeal in the hope Kerry wins in November before the country is further damaged. If Bush begins to pull ahead of Kerry, however, they will be forced to choose between the other two choices: Tell all or let Bush go.

    We know what Karl Rove is saying about THAT choice: “You don’t have the balls.”

  73. Pingback: Daniel J. Luke's Weblog

  74. larry hoppen says:

    The idea that leaking docs piecemeal to give Sen. Kerry ‘just enough’ of an edge is naive, in my opinion. This Republican Party will follow its leaders and do ANYTHING they feel necessary to win. They’ve already demonstrated that MANY times over. Leaking is good, the more AND the more damning, the better.
    Un-American, inhumane, Nazis… are ANY words strong enough to describe the extremely frightening extremist Administration and Party zealots wrapping themselves in the flag while our system and lives become comletely unhinged from the Constitution and a free society?
    Have we not JUST been reminded that Ronald Reagan ADMITTED to the crime of selling arms for hostages, but because he did so in his inimitable “all-American” style, he engendered complete impunity?
    I refuse to give up hope, but modern history does not reassure me that measured reaction will do any good at all. Leaks need to be relentless and damning until Congress and reasonable citizens unite in taking ACTION and these bastards are GONE from our Government!

  75. Jim Thornton says:

    About military lawyers: I was one for over 30 years, in the United States Army. To be commissioned in the Army Judge Advocate General’s Corps an individual must be admitted to the practice of law in one of the States or the District of Columbia. Military lawyers are all lawyers. Some officers who have served in other branches in the Army are sent to law schoool and after graduation and admission to the bar are transferred into The Judge Advocate General’s Corps.

  76. Jason says:

    Ahhhh, here’s a timely one from Josh Marshall.

    http://www.hillnews.com/marshall/ 061004.aspx

    I think what he’s talking about is slowly seeping in, but it may take a “smoking gun” memo to seal the deal. The big question isn’t whether we’ll determine if Bush sanctioned and approved torture. That’s coming and, as Josh notes, is already obvious. The real question is, what will we (citizens, media, Congress) do with this information? From a strictly logical/legal perspective, this stuff is pretty nasty and quite impeachable. Politically…not so clear.

    Again, referring to my last post. Bring up impeachment and what does Karl Rove say: “You haven’t got the balls.”

    John McCain may have the balls. How about John Warner? Lindsey Graham? Dick Lugar? If it’s going to happen, it will be because of Republican Senators.

  77. Sean Callaahn says:

    Regardless of legality, morality, State Dept./CIA motivation…

    Everyone here is talking about impeaching Bush, but no one appears to have given a thought to who would succeed him. Do you really want Dick Cheney as president? Perhaps the democratic method really is best. Roll on November.

  78. Sean Callaahn says:

    Regardless of legality, morality, State Dept./CIA motivation…

    Everyone here is talking about impeaching Bush, but no one appears to have given a thought to who would succeed him. Do you really want Dick Cheney as president? Perhaps the democratic method really is best. Roll on November.

  79. Eurisko97 says:

    What’s upsetting me especially about all of this is timing — with Reagan’s death, I’ve hardly seen much media coverage on this. I learned about it from the paper, stuck in a small corner of the front page, with the major headline of Reagan kicking the bucket.

    I think this is something we need to get Kerry to push after the media blitz on Reagan dies down.

  80. JC says:

    1. Notice that Ashcroft before the Judiciary Committee refused to specifcally answer Leahy’s question as to whether he agreed with the legal reasoning and conclusions of the memo. What about Bush; does he agree? He now claims that he told everyone to obey the law. But does he agree with the memo.?

    (He also claims he can’t remember if he saw the memo. That is absurd. That memo ought to have made the hairs on the back of his neck stand straight up. How can he claim he doesn’t remember? He must have watched too many Reagan Iran-Contra TV pieces.)

    2. So under this draft, when would the Geneva Convetion provisons apply? I thought they address times of war, but under the memo, during times of war, the Prez. can ignore the provisions. That makes no sense. Why even bother with the Geneva Convention?

  81. Pingback: Brodo Primordiale

  82. John says:

    I saw the reference to the 1689 Bill of Rights. I’m not a lawyer, so forgive me if I ask a stupid question.
    When I read that document I see the obligations laid on Parliament. Parliamentarians declare their loyalty to the King/Queen.
    On the other hand the obligations laid on the King/Queen are specified in the Coronation Oath Act of 1689.
    Now the fact of the matter is that the Coronation Oath Act has not been effective since they passed the Treason Felony Act in 1848. But I digress.
    What about the Presidential Oath?
    John

  83. richard says:

    As the justifications for invading Iraq have proven false, so have the “legal” opinions for conducting interrogations proven false. There is a pattern here: the executive has assumed a position of priviledge or entitlement, wiedling frightening power.

    The European response to the invasion of Iraq has been instructive. Our international relations must be at an all time low. If the executive unilaterally interprets international law and treaties, who would trust our reputation to uphold any agreements?

  84. Pingback: Procrastination

  85. Pingback: yesh omrim

  86. Pingback: netcynic.com

  87. A Citizen says:

    The author of the memo in question is a member of the California State Bar. Advocating a criminal act, or justifying a prospective criminal act is arguably a breach of professional conduct (if not more) and certainly should be brought before the bar for THEM to make the determination whether it should be punished or not. There are many levels of punishment, from a private admonishment to disbarment. But the bar cannot act against an attorney without an initial complaint upon which to act. All licensed lawyers swear an oath to monitor their profession and weed out the bad guys in order to protect the public. Now’s the time. Boy, do we need protecting. Furthermore, I don’t see why a citizen of the State of California who feels that a lawyer has acted in an unprofessional manner can’t call it to the attention of the bar. I’m not sure who has standing in the memo case to file a grievance, but try it anyway. If you don’t have standing, they will tell you.

    John Ashcroft showed contempt for the law and for Congress and for us by refusing to provide this memo to Congress when asked. They don’t have the votes in Congress to find him in contempt. So he should also be grieved. I believe he is a member of the Pennsylvania State Bar. Lawyers, their licenses, their organizations, their qualifications, etc. are a matter of public record. He said the memo is attorney client information. Aren’t these the same people who said that no government attorney can argue privilege (ie:Clinton)?

    People, the Bushies control the whole government. They control the Executive Branch. They control Congress. They certainly have great influence on the majority of Supreme Court, although some of the nine seem to be having a few qualms lately. (By the way – one party rule and a merger of state and corporate interests = fascism). Even if we have brave members of Congress to speak out and demand action, they don’t have the votes to do anything. So it’s time to start trying to yank law licenses in the most egregious cases. Once they are at a grievance hearing, who knows what information will surface? Also, maybe knowing they are being watched, that there are professional consequences, and they could lose their livelihood would rein them in a little.

    The American Constitution Society is headquartered in Washington. It was set up to counter the Federalist Society. They can certainly start taking some PR action against these specious arguments. Time to stop having seminars, folks. The coup d’etat is HERE. Stop wringing your hands, get up off your comfy leather chairs and out of your plush offices and man the barricades – our Constitution needs you.

    To all law professors with tenure who believe in checks and balances, and who recognize that an executive with unlimited power by definition is a DICTATOR, now’s the time to step up to the plate.

    Now more than ever the criminal defense attorneys who work tirelessly to defend OUR Constitutional rights by holding their noses and defending scumbags, now is the time for them to speak up as well.

    It’s time for all of us at a minimum to support those lawyers with the courage to take on this administration. The lawyers for those accused in the “war on terror” (have ANY of those cases resulted in conviction?) The Center for Constitutional Rights in NY. Philip Berg in PA who has filed a RICO suit against Bush et al on behalf of Ellen Mariani, a 9/11 widow. Read their pleadings – they are eye-opening. Get the word out.

    I am all for organizing. If the ACS isn’t willing to be activist, then it’s time for all lawyers and those who still believe we are a nation of laws and not a fascist dictatorship to find a common locus, hammer out a set of guiding principles, and fund and transmit the message.

    US citizens have a Constitution which protects us against the government. There are three branches to our government. Each branch serves as a check on the other two. There is no one above the law in this country. I took these 5th grade civics lessons to heart – and I hope for our sake that the others who do also will open their eyes and see that the emergency is upon us and act accordingly.

    Time to wake up.

  88. Pingback: Crooked Timber

  89. Pingback: Crooked Timber

  90. Free Eagle says:

    Did it occur to anyone that this is one of those government documents that is done all the time as an exercise in exploring all possible future options to the point of idiocy? Like all the “limited nuclear war” stuff, and all the plans to launch nuclear strikes on China, or Russia, or other weird plans that FEMA has made in case the polar ice cap melts and they have to declare martial law, etc, etc.

    What this looks like to me is some draft that lawyers made up to defend the President and to stretch the justification for aggressive interrogation tactics as far as possible as a sort of think piece, which, having just sat through a trial, I was reminded that lawyers do all the time. Bush said at first he couldn’t remember seeing it, and then that he never did see it. I find that plausible.

    Not that I think what has happened isn’t terrible, or that Bush has no responsibility here, but I think some of the comments here are way over the top about this memo. If Bush never acted on any of it then it doesn’t mean a whole lot except that maybe we are employing too many lawyers in Washington.

  91. Pingback: Mark A. R. Kleiman

  92. Pingback: Mark A. R. Kleiman

  93. Pingback: Mark A. R. Kleiman

  94. Pingback: Kieran Healy's Weblog

  95. Pingback: Mark A. R. Kleiman

  96. Septuagenerian says:

    I was born at the end of Pres.Hoover’s debacle. I witnessed many egregious actions by all the succeeding administrations, yet I never felt the panic I feel now for the safety of our democracy. We are truly in a constutional crises: the worst in my lifetime.:the Law is breaking the law! Ethical lawyers are needed to forge a serious, well publicized defense of the Constitution. The realities of the unlawfulness of these times must be proclaimed over and over again by the Law, in its own defense and the defense of this nation. Sane, simple and truthful education of the people can help prompt the necessary eruption of citizen-wrath. Lawyers! How and What can you do to bring clarity BEYOND the Blogworld?

  97. Septuagenerian says:

    I was born at the end of Pres.Hoover’s debacle. I witnessed many egregious actions by all the succeeding administrations, yet I never felt the panic I feel now for the safety of our democracy. We are truly in a constutional crises: the worst in my lifetime.:the Law is breaking the law! Ethical lawyers are needed to forge a serious, well publicized defense of the Constitution. The realities of the unlawfulness of these times must be proclaimed over and over again by the Law, in its own defense and the defense of this nation. Sane, simple and truthful education of the people can help prompt the necessary eruption of citizen-wrath. Lawyers! How and What can you do to bring clarity BEYOND the Blogworld?

  98. Septuagenerian says:

    I was born at the end of Pres.Hoover’s debacle. I witnessed many egregious actions by all the succeeding administrations, yet I never felt the panic I feel now for the safety of our democracy. We are truly in a constutional crises: the worst in my lifetime.:the Law is breaking the law! Ethical lawyers are needed to forge a serious, well publicized defense of the Constitution. The realities of the unlawfulness of these times must be proclaimed over and over again by the Law, in its own defense and the defense of this nation. Sane, simple and truthful education of the people can help prompt the necessary eruption of citizen-wrath. Lawyers! How and What can you do to bring clarity BEYOND the Blogworld?

  99. Septuagenerian says:

    I was born at the end of Pres.Hoover’s debacle. I witnessed many egregious actions by all the succeeding administrations, yet I never felt the panic I feel now for the safety of our democracy. We are truly in a constutional crises: the worst in my lifetime.:the Law is breaking the law! Ethical lawyers are needed to forge a serious, well publicized defense of the Constitution. The realities of the unlawfulness of these times must be proclaimed over and over again by the Law, in its own defense and the defense of this nation. Sane, simple and truthful education of the people can help prompt the necessary eruption of citizen-wrath. Lawyers! How and What can you do to bring clarity BEYOND the Blogworld?

  100. Septuagenerian says:

    I was born at the end of Pres.Hoover’s debacle. I witnessed many egregious actions by all the succeeding administrations, yet I never felt the panic I feel now for the safety of our democracy. We are truly in a constutional crises: the worst in my lifetime.:the Law is breaking the law! Ethical lawyers are needed to forge a serious, well publicized defense of the Constitution. The realities of the unlawfulness of these times must be proclaimed over and over again by the Law, in its own defense and the defense of this nation. Sane, simple and truthful education of the people can help prompt the necessary eruption of citizen-wrath. Lawyers! How and What can you do to bring clarity BEYOND the Blogworld?

  101. Septuagenerian says:

    I was born at the end of Pres.Hoover’s debacle. I witnessed many egregious actions by all the succeeding administrations, yet I never felt the panic I feel now for the safety of our democracy. We are truly in a constutional crises: the worst in my lifetime:the Law is breaking the law! Ethical lawyers are needed to forge a serious, well publicized defense of the Constitution. The realities of the unlawfulness of these times must be proclaimed over and over again by the Law, in its own defense and the defense of this nation. Sane, simple and truthful education of the people can help prompt the necessary eruption of citizen-wrath. Lawyers! How and What can you do to bring clarity BEYOND the Blogworld?

  102. Pingback: Crooked Timber

  103. Romdinstler Jones says:

    Free Eagle:

    “What this looks like to me is some draft that lawyers made up to defend the President and to stretch the justification for aggressive interrogation tactics as far as possible as a sort of think piece…if Bush never acted on any of it then it doesn’t mean a whole lot except that maybe we are employing too many lawyers in Washington.”

    Scenario 1: Bush administration lawyers drew up a memo saying that the President could ignore the Geneva Conventions and US laws prohibiting torture. The President, after studying the memo, proceeded, in consultation with his advisors, to put policies in place that allowed the military to torture detainees.

    Scenario 2: Bush administration lawyers drew up a memo saying that the President could ignore the Geneva Conventions and US laws prohibiting torture. The President never heard of the memo. Later on, in consultation with his advisors, he put policies in place that allowed the military to torture detainees.

    I think I’d prefer the first scenario to the second. At least in that case we might be able to conclude that the President would not have had contravened the Constitution without having at least some justification on hand at which to point.

    And as far as some comments here being “over the top”, I’d suggest that if Scenario 2 seemed more plausible to those making the comments to which you refer, then their comments would have seemed much, much more over the top to you than do their current ones.

  104. Romdinstler Jones says:

    Sean Callahan:

    “Everyone here is talking about impeaching Bush, but no one appears to have given a thought to who would succeed him. Do you really want Dick Cheney as president? Perhaps the democratic method really is best. Roll on November.”

    If Bush goes, Cheney could be next in line. If Bush goes and Cheney happens to hang on, then whatever stature he currently holds with the public – and by all accounts, he is not really regarded all that well – would be further diminished, as would the Republican party as a whole. Sure, we could wait for November and hope for a Bush defeat, but if Bush is in the election, he could still win it. The best way to insure that he not do that is to insure that he cannot participate. But, having said that, I don’t think that is the best reason for impeaching Bush.

    The best reason for impeaching Bush is because he DESERVES to be impeached. And when a president deserves to be impeached, that means the good health of the nation is dependant upon that impeachment being carried out. Some say that that could be so damaging to the country that it should not be considered. I say that if the impeachment of a deserving president is not carried out then the country is already so far gone as to not be worth saving and that any such damage that would occur as a result of that impeachment is way over and above being redundant.

  105. Paul Geller says:

    Start with Truman’s premise: The buck stops at the president. Having specified powers does not mean that all these powers are always properly exercised. Thus, if Bush claims the power to have prisoners subjected to practices usually called “torture,” then Bush is answerable for when and how these practices were used under his watch. However, if Bush did not have the power in question, then he is all the more answerable for acting outside his mandate. Impeach — hell, yes! Is the present’s scienter relevant? Not according to Truman’s premise.

  106. Robert says:

    I didn’t read all of the comments here (and certainly not all those made elsewhere), but what I have not seen mentioned much is that the memos give very little indication that they are taking very extreme legal positions. It’s fine to take such a position (at least for a lawyer; less so for a President), but I think a lawyer has an obligation in such a memo to point out that the position advanced is at odds with the prevailing U.S. and international precedent. It’s pretty much malpractice not to inform one’s client that you are advising them to adopt a view that would be considered illegal in most circles.

  107. Chris says:

    One way to get the word out is to write to the newspapers. My local paper, to my knowledge, didn’t even mention the memo. I’d suggest downplaying the torture issue in your letters, as there is considerable disagreement on the morality of it and it is a distraction from the more serious implications of the memo (as noted already in this blog). Focus on the dictatorship aspect, and I suspect that even the most hard-core Bushies will be hard-pressed to justify dictatorship. But–if the letters to the editor in my local paper is any guide–the grassroots Bush supporters are also appallingly ignorant of or indifferent to what it means to have a constitutional republic.

    Below is the text of the letter I wrote to the Bloomington-Normal (IL) Pantagraph. Please feel free to modify it as you see fit and send to your local paper.

    “Recently, a Department of Justice memorandum drafted at the request of the White House was leaked to the media, and its text is available on the Internet (see the Washington Post site). This ghastly document explores how to best legitimize the torture of those whom the President, acting as commander-in-chief, decrees are our enemies. Whatever one’s feelings on torture in wartime, the memo advances the still more ominous argument that national and international laws, and our treaties with other countries, need only be honored at the President’s whim. Neither may constitutional checks and balances curb presidential discretion in wartime, in the opinion of the memo’s authors. The president is essentially above the law.”

    “One may think that hard times call for hard measures. But whether we are at war or not, immunity from law gives Bush the power of a dictator. This is dangerous policy. When government is no longer obligated to heed the law, the average citizen is no safer than those of Hitler’s Germany, Pol Pot’s Cambodia, or Stalin’s USSR. This is why we have a constitution, since its framers wisely feared that government power could easily be used against its citizens. Indeed, the capacity of a totalitarian nation-state for terror makes Al Queda look impotent. The so-called “war on terror” is therefore an unworthy reason to allow the President the power, if not the title, of dictator.”

    “Because his office requested the memo, and because his actions are consistent with that memo’s intent, Bush has reneged his vow to protect and defend the Constitution of the United States. Far from reflecting American values, the memo has much in common with the creed of a third-world despot. If Congress really believes in our laws and Constitution, they would move to strip Bush of his presidency. If the average American believes in individual liberty, he or she will demand Congress take action, or else throw Bush out of office in November. The relative silence of both groups, and our own Pantagraph, leaves me with the sad feeling that Americans are in reality a people indifferent to being servile.”

  108. Pingback: Crooked Timber

  109. Pingback: Crooked Timber

  110. Pingback: Crooked Timber

  111. Pingback: Crooked Timber

  112. Pingback: Kieran Healy's Weblog

  113. Mike Wilson says:

    Sorry to have joined the conversation late but thanks for the analysis.

    Note to Andrew and his gratuitous comment about military lawyers and doctors – they are as good (or bad) as any other lawyers or doctors. But the real point is that Mary Walker, the author of the “torture memo” is NOT a military lawyer – this is strictly a civilian debacle.

  114. Pingback: Whiskey Bar

  115. Chris says:

    This is a little bit belated, but this particular post on the torture memos was–after all–what made a conservative like me (albeit one who was nevertheless unimpressed with Bush) shrill. It led me to write my first letter to the editor ever (see my June 17 post above to see what I sent, if you’re remotely interested in such things).

    Anyway, my reaction on reading the Walker memo was something like:

    “What the f***! How did the f***ing Nazis get themselves into running our godd**n country?! Fascist dictatorial sons of a b****! They call themselves PATRIOTS, these godd**n charlatans and scumbags?! And they say they are fighting for our FREEDOM?!?” At that point in my rant at my helpless computer monitor, I began to hear voices that I could not understand, and I began screaming: “GET OUT OF MY MIND!! STOP IT!! YOU’RE DRIVING ME..MUH…MUH…MAAAAAAAAD!!!!”

    For a good fifteen minutes my brain was like “Abort/Retry/Fail” and kept attempting unsuccessfully to reboot. Only recently, I finally understood what those voices were telling me: Aaaiii! Ph’nglui mglw’nafh Walker Memos R’lyeh wagn’nagl fhtagn! Aaaiii!!!! Aaaaaaaaiiiiiiiii!!!!!!!!!!

    I’m just a regular mild mannered college professor without a blog, and so too inconsequential to be recognized in Shrillblog. But it does happen to regular guys, and so I hope that there are enough like me who have entered unholy shrilldom to swing the numbers for Kerry in just a couple of weeks. This post on the Walker memo helped, and I hope the CIA report that Bush is sitting on will have the rest of us rolling on the ground and speaking in tongues very soon.

    —–

  116. Pingback: The Reason Hut

  117. Pingback: Wampum

  118. Pingback: Psyche

  119. Pingback: Psyche

  120. I discovered your site on Yahoo. I like it and forwarded to my friends who may be intereste.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Notify me of followup comments via e-mail. You can also subscribe without commenting.