The Wall Street Journal is actually turning out to be one fine newspaper. As many have recently been pointing out, these folks report real news, important stuff - scooping the Washington Post and New York Times. Of course their editorial page is still the dominion of brutish Neanderthal rants against those who perversely choose to be poor (the "lucky duckies" who don't pay the proper percentage of their pitiful income in taxes but use up all the damned sevices), against those who do not see George Bush as a towering moral figure, and also the domain of the loony and sentimental Peggy Noonan and her magic dolphins rescuing heroic folks fleeing Cuba for Miami.
Today the news half of the paper - not the opinion half - dropped another bombshell.
The newspaper got hold of a classified draft of a Pentagon report from 2003 that pretty much works out why President Bush is not bound by laws prohibiting torture - and the report concludes that the Justice Department cannot prosecute our soldiers, or any government agents, who engage in torture at his direction.
The item is only available in print, and on the net if you have a paid subscription to the paper. That's a bit expensive. Reuters has a summary. The bootleg copy of the full article, every word in proper format, is here - but if you believe in the value of copyright laws your really shouldn't click on that.
Ah, but as of late in the day June 8th the Journal posted the complete memo, their source materiel for the story, and it is available online - with no restrictions. They got their scoop, and this posting, open to the world, is clearly a sort of in-your-face "ha ha" to all the other newspapers that don't seem to get the hot items. Judith Miller at the Times, the nation's most influential newspaper (the paper of record, as they say) - Judith Miller, perhaps the key journalist who bought everything Chalabi claimed and reported it all as unquestionably true (with the approval of her editor Howell Raines), and who then bought the White House line that she was on the right track (Cheney said on Meet the Press that all the WMD stuff had to be true because it wasn't just him claiming all this, it was the "liberal" New York Times) - Judith Miller who thus was one pivotal influence in making this war possible... well, Judy, here's what real "source information" looks like. Howell Raines was forced to resign. Judy, it's your turn, even with your Pulitzers.
But I digresss...
What this all comes down to is that back in March of 2003, just before we rolled into Iraq, Donald Rumsfeld asked for, and received, an extensive legal memorandum. The idea was to establish a legal basis for what to many, like the International Red Cross and most world opinion, now seems like torture - the messy stuff in the photos and what has been reported from Guant?namo.
What Rumsfeld got was a hefty pile of paper the reviews our own laws and international treaties forbidding torture, and then goes on to lay out why those restrictions might just "be overcome" by national-security considerations - or by a few well chosen legal maneuvers.
The Journal got their hands on the March 6, 2003 draft of this report. Of course some passages were deleted. Security. And what was missing? An attachment listing specific interrogation techniques and whether Rumsfeld, or others, must grant permission before these curious and painful techniques could be used. But the general idea is clear, isn't it? The Journal also tells us that the complete draft document - including those missing details - was classified "secret" by Rumsfeld and scheduled for declassification in 2013.
So pretend it's 2013 - for the fun of it. From the Journal:
Yep. Things changed when the towers went down. The old rules do not apply.
The draft report ... deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawfull. But at its core is an exceptional argument that because nothing is more important than "obtaining intelligence vital to the protection of untold thousands of American citizens," normal strictures on torture might not apply.
And to juice things up a bit, the Journal tells us one of the authors of the draft report is William Haynes, now awaiting confirmation as a federal judge.
One assumes Bush has not seen the report. He delegates.
According to Bush administration officials, the report was compiled by a working group appointed by the Defense Department's general counsel, William J. Haynes II.
Air Force General Counsel Mary Walker headed the group, which comprised top civilian and uniformed lawyers from each military branch and consulted with the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency and other intelligence agencies. It isn't known if President Bush has ever seen the report.
But what is so newsworthy about this classified report? Try this - arguments that we can use torture, legally:
Yeah, read that carefully. Our personnel can be protected. It worked for the Nazi guys.
Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the "necessity" of using such methods to extract information to head off an attack, or "superior orders," sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no moral choice was in fact possible."
But the core idea is even more newsworthy:
Yep, he be the man. Statutes and such do not matter. He has absolute power.
The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued...
A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign the president virtually unlimited authority on matters of torture - to assert "presidential power at its absolute apex," the lawyer said...
The working-group report elaborated the Bush administration's view that the president has virtually unlimited power to wage war as he sees fit, and neither Congress, the courts nor international law can interfere...
Citing confidential Justice Department opinions drafted after Sept. 11, 2001, the report advised that the executive branch of the government had "sweeping" powers to act as it sees fit because "national security decisions require the unity of purpose and energy in action that characterize the presidency rather than Congress"...
Really? Yes indeed.
The authority to set aside the laws is "inherent in the president?"
To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."
Why the hell did we then go through all that Watergate business with Nixon?
Phillip Carter, a former military officer and a lawyer, comments that this may not be so.
Don't tell that to Rumsfeld.
Even in wartime, the President's authority to act is limited by the Constitution, and where Congress has specifically proscribed activity. Advice to the contrary is wrong, and any actions which follow this advice are probably unlawful as well.
Robert Dreyfuss adds this:
Okay. Who then defines the greater good?
...here's how the Pentagon's shysters split the torture hairs: "The infliction of pain or suffering, whether it is physical or mental, is insufficient to amount to torture,' the report advises. Such suffering must be `severe,' the lawyers advise, and they rely on a dictionary definition to suggest that it `must be of such a high level of intensity that the pain is difficult for the subject to endure.'
The report goes on to say that Congress has no business trying to regulate whether U.S. soldiers or other officials torture prisoners, since that would violate the commander-in-chief's constitutional power to wage war. "Sometimes the greater good for society will be accompanied by violating the literal language of the criminal law," says the report.
The Journal has stirred up a hornets' nest.
And here's a curious comment from Josh Marshall -
Marshall goes on to discuss how Jefferson analyzed this issue. A president MAY break the law. Of course. But Jefferson argued that when he does, he is then obliged to explain that he has and ask for a judgment - he should, Jefferson says, submit himself for punishment for breaking its laws, even in its own defense. Click on the link for detail.
So the right to set aside law is "inherent in the president". That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around. This is the essence of what the rule of law means -- a government of laws, not men, and all that.
Now, we know that presidents sometimes break laws and they frequently bend them, if only in cases where the laws don't seem to anticipate a situation the president finds himself confronting. There is even an argument that the president can refuse to enforce laws he deems unconstitutional.
But there is no power inherent in the president simply to set aside the law. Richard Nixon famously argued
that "when the president does it that means that it is not illegal." But the constitutional rulings emerging out of Watergate said otherwise. And history has been equally unkind to his claim.
That is not going to happen here.
Torture? Well, humiliation, pain and suffering, a few homicides, a bit of rape. Not just in one prison but in many. But....
Just a few bad apples. Not our policy. Nothing to see here. Just move on, folks.
But if you are going to torture people, we seem to have a nifty new tool!
See Beam burns into the future
Greg Gordon, Minneapolis Star Tribune Washington Bureau Correspondent, May 30, 2004
Ands this is it!
Okay. Crowd control.
WASHINGTON, D.C. -- Test subjects can't see the invisible beam from the Pentagon's new Star Trek-like weapon as it heats the water molecules in their bodies. But no one has withstood the pain it produces for more than three seconds.
People who volunteered to stand in front of the directed energy beam say they felt as if they were on fire. When they stepped aside, the pain disappeared instantly.
The long-range column of electromagnetic wave energy is known as the "Active Denial System" (ADS) for its ability to prevent an aggressor from advancing. Senior military officials, who plan to deliver the device for troop evaluation this fall, say years of testing have produced no sign it will lead to health effects beyond perhaps causing skin to temporarily redden.
It is among the most potent of a new generation of futuristic "less-than-lethal" weapons being developed by the Defense Department -- tools that could dramatically alter the way soldiers fight wars and police control riots.
... When the beam hits a person, it penetrates 1/64th of an inch beneath the skin and heats water molecules to 130 degrees in less than a second.
"It tricks the pain sensors into thinking they're on fire," said Rich Garcia, a spokesman for the Air Force Research Laboratory at Kirtland Air Force Base in Albuquerque, N.M.
Garcia knows firsthand. He was among hundreds of test volunteers who stood with their backs facing the device.
"They did a full body back shot," he said. "It hit in the small of my back first. For the first millisecond, it just felt like the skin was warming up. Then it got warmer and warmer and you felt like it was on fire."
He said he lunged away.
"As soon as you're away from that beam your skin returns to normal and there is no pain," Garcia said. "I thought to myself, 'Why, you wimp. You know it's not causing any damage. You'll be able to override it.' Each of the next three times, I was on there a little bit longer ... about two seconds. It felt like my hair was on fire."
... Maj. Jonathan Drummond of the Air Force's Directed Energy Bioeffects Division noted that the weapon could provide U.S. forces "with a nonlethal capability in military operations other than war." Among possible uses, he listed peacekeeping, humanitarian operations and crowd control.
Marine Capt. Dan McSweeney, a spokesman for the Non-Lethal Weapons Directorate, pointed to "instances in Iraq where crowd situations have unfortunately ended in violence" and death.
But if your needed information? This could be really useful.
Unbearable pain. No marks. No permanent, traceable damage. Donald Rumsfeld is smiling tonight.
"It seems fundamentally a weapon that's designed to create a great deal of pain and fear," said Johnson, the center's executive director. "The concern I would have is ... once this kind of technology is available and there's a perception that it's safe and nonlethal, it seems like a natural device to be used in interrogations."