Another How-To-Torture Memo

INTEL DUMP summarizes a Wall Street Journal account of a 100+ page memo that purports to explain how torture of detainees at Guantanamo could be legally justified.

The core of the argument is little more than the old Nixonian one that the President is above the law, so that he can authorize actions that would otherwise be illegal. It's dressed up with some sophistication, but that's about what it amounts to.

Phil says all the right things, so I won't repeat them. But there is one aspect that he missed. According to the WSJ:

The lawyers concluded that the Torture Statute applied to Afghanistan but not Guantanamo, because the latter lies within the “special maritime and territorial jurisdiction of the United States, and accordingly is within the United States” when applying a law that regulates only government conduct abroad.

As summarized by the WSJ, the crux of the government's position in this memo is that the executive has full unreviewable power in Guantanamo, not subject to check by the courts (at least absent some congressional action?). That this might be legally possible does not make it legally or morally correct.

Thus, it appears that the memo somewhat undermines the argument that the government made before the Supreme Court, where it argued that Gitmo was outside the jurisdiction of the courts because, being subject to residual Cuban sovereignty albeit US control, it was not part of the US for jurisdictional purposes. It's not impossible to have different conceptions of 'domestic' jurisdiction for the reach of a statute and judicial review — but it's uncomfortable and IMHO presumptively wrong.

This memo may also strengthen the case, set out by Eric Muller, that Deputy Solicitor General Paul D. Clement knew or (more likely) should have known that he was making a false statement when he said “[i]t's … the judgment of those involved in this process [of interrogating POW's and enemy combatants] that the last thing you want to do is torture somebody or try to do something along those lines.”

Someone — Congress? — really needs to get to the bottom of all this.

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6 Responses to Another How-To-Torture Memo

  1. Randy Paul says:


    I’m not a lawyer, so please excuse my ignorance, but the Torture Statute (aka the implementing legislation for the Convention Against Torture) states the following regarding jurisdiction:

    (b) Jurisdiction. –

    There is jurisdiction over the activity prohibited in subsection (a) if –

    (1) the alleged offender is a national of the United States; or

    (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

    How can they claim that the CAT does not apply when one of the criterion consists of the alleged offender simply being a US national?

  2. drc says:

    Randy Paul —

    I’m barely a lawyer, and I’m not sure if I’m answering your question, but the offense, 2340a(a), requires torture “outside the United States,” and the jurisdiction (b) simply means that only U.S. nationals or US non-nationals arrested while present in the US can be prosecuted.

    I think Michael was speaking a little loosely to the extent he was saying that the location of Guantanamo is a “jurisdictional” issue for the CTA statute. Perhaps it would be more precise to say that the DOJ would be advocating two different notions of the “territoriality” of Guantanamo for purposes of being an element of s. 2340a(a) and for conveying habeas jurisdiction.

    But you have to think that the “outside the US” element is there only because domestic law normally prohibits torture in the US. So the crazy thing is the attempt to really create a no man’s land for the rule of law in Guantanamo, where it is “inside the US” to avoid prosecution under international law standards but “outside the US” such that prisoners can not bring court claims to vindicate domestic rights.

  3. Randy Paul says:


    You’re right I reread the offense. But your last paragraph just illustrates that this is one of history’s greatest examples of “head I win, tails you lose.” What sophistry!

  4. Phill H-B says:

    This is simply another case of the classic Bush administration use of rubber definitions. A term means precisely what it is convenient at the time. Even if that means that it must have two contradictory meanings in close succession.

    The Geneva Conventions are written very carefully and broadly. Either one is at war or not, either one is a prisoner of war or not and there are very precise limitations that apply in either case. The administration claim is that there can be no war crimes in Iraq since we are manifestly not at war, yet they have refused to declare an end to the war since that would deprive them of war powers and require prisoners of war to be released.

    The constitution sets out very specific requirements for setting aside Habeas, instead the administration invents a new enabling principle, the country is a war. Yet according to the constitution the country is manifestly not at war, the Congress has neither been asked to grant, nor has granted war powers to the President.

    The question that has not been asked but must be asked is whether Bush will grant pardons to any person implicated in the torture scandals. Bush I blocked prosecution of the Iran-Contra conspirators by granting pardons after losing to Clinton. It is time to make it plain that any attempt to do this will result in demands for the US to accept the jurisdiction of the ICC.

    The Renquist court has already ruined its reputation with the Florida decision. It is unlikely that history will be kind to Renquist, Scalia, Thomas and the gang. At the moment they merely rank as a bunch of partisan hacks who put their party above the law. If they fail to assert that the administration is subject to the rule of law in the Guantanamo and ‘Enemy Combattant’ cases they will be regarded with the same level of distain as the authors of Dredd Scott. I suspect however that it will be difficult even for the likes of Thomas to pretend that they were not lied to when the administration claimed that no torture was taking place.

  5. Jon R. Koppenhoefer says:

    I’ve begun wondering if I’m crazy or not, ever since a federal grand jury was convened to indict Manuel Noriega for ‘conspiring’ to break US drug laws while outside the United States. Some clever lawyering (no doubt coupled with some sympathetic jurisprudential gymnastics) expanded the geographical jurisdiction of the US, by which it was agreed that a conspiracy outside the US was prosecutable if elements of the crime were committed within the US. Sounds like something from Law and Order to me, but there it is.

    Based on this ‘authority’, the President of the United States sent the US Army and others to Panama to ‘arrest’ Noriega and the rest is history. Of course, subsequent to this precedent-setting incident, people like Henry Kissinger began to check their travel plans more carefully, for fear that some other government might want to ‘arrest’ them for conspiring in the US to commit crimes in foreign lands.

    This puts the idea of territorial sovereignty into a cocked hat, so to speak, as anybody with the power to snatch up anybody they don’t like can indict them in a domestic court and then go abroad to kidnap them, all in the name of ‘law enforcement’. Makes globalization almost welcome, when you think of some implications (see Kissinger, above).

    Now we’ve got the Executive Branch claiming it has the ‘authority’ to bomb the house of Muammar Ghaddafi (spelling optional) or a farm visited by Saddam Hussein for a night or two, simply to kill them because…well because the President wants them dead.

    Some may think this is pretty cool, but it’s a short and slippery slope from Executive ‘authority’ to kill foreigners on command to killing domestic undesirables because they represent a national security threat.

    If you don’t think it can happen here, just ask Jose Padilla where he’s been sleeping for the past two years without benefit of counsel or contact with the outside world, just because the President wants him dropped down a deep dark hole. AND NOBODY SEEMS REALLY UPSET ABOUT IT, EITHER.

    Is this the land of the free? Not any longer. It’s been a year or so since I’ve seen my neighbors. Could they be held incommunicado somewhere as suspects in the ‘war on terror’?

    If it were up to that hack Ashcroft and that legal scholar George W Bush, it’s entirely possible.


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