Initial Report of the U.S. to the UN Committee Against Torture (October 15, 1999) [emphasis added]:
Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.
Alberto Gonzales's confirmation hearing (Jan 5, 2005):
SEN. LEAHY: … I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief override and immunize acts of torture?
MR. GONZALES: With all due respect, Senator, the president has said we’re not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors.
Everyone except the most craven administration apologists understands the only acceptable answer is that not even the President can authorize torture. A lawyer who doesn't understand this is at best a fool or a knave. If he's a government official, however, there are other, far baser, options.
Crying shame the confirmation hearing wasn’t able to make this critical point, and that Gonzales’ evasive tactics are just helping the ruling party characterize this all as an overly inflated issue in the battle between left and right.
Ah, but that 1999 report was from the Clinton administration. And therefore, rather than representing anything like the truth, is was, and remains, a lie. Only now can the truth be revealed, that the President, if he is a good Republican President, can make of the law what he will.
I posted the above to Sen. Leahy over the weekend, with the emphasis added that torture is prohibited even if the President (a superior officer) orders it.
I also said to Sen. Leahy that I think Gonzales perjured himself when he said he had no first or secondhand knowledge of any presidential directive pertaining to the treatment of detainees (other than the directive of Feb. 7, 2002)
Michael, who, in the President’s cabinet, writes executive orders?
Executive order drafts can have any of a large number of sources, either in an agency or on the white house staff. The Office of the Legal Adviser in the State dept. drafts those that originate from State. Etc. Etc.
By early 2002, the president, assured by his counsel, Alberto Gonzales, and other administration lawyers that he could approve secret, unsparing rules for interrogations, “signed a secret order granting new powers to the CIA. . . .[T]he president’s directive authorized the CIA to set up a series of secret detention facilities outside the United States, and to question those held in them with unprecedented harshness — Newsweek, The Roots of Torture The Road to Abu Ghraib, May 24, 2004
Surely, Gonzales was aware of this Executive Order.
I’m wondering if the memos crafted by Gonzales and John Yoo were an attempt to provide legal cover for administration officials for crimes already committed? Perhaps the Bushniks got wind of the fact that the Abu Gihrab torture story was going to be revealed in the media, and they ordered the Justice Dep’t. to go into “let’s-cover-our-ass” mode.
Does anyone else think this is plausible?