Tuesday, June 08, 2004

This is why lawyers get paid the big bucks.
In August 2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad "may be justified," and that international laws against torture "may be unconstitutional if applied to interrogations" conducted in President Bush's war on terrorism, according to a newly obtained memo. . . .

A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in the world. But the Pentagon group's report, prepared under the supervision of General Counsel William J. Haynes II, said that "in order to respect the President's inherent constitutional authority to manage a military campaign . . . [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority."

The Pentagon group's report, divulged yesterday by the Wall Street Journal and obtained by The Post, said further that the 1994 law barring torture "does not apply to the conduct of U.S. personnel" at Guantanamo Bay.

It also said the anti-torture law did apply to U.S. military interrogations that occurred outside U.S. "maritime and territorial jurisdiction," such as in Iraq or Afghanistan.
As I read it, the Justice Department is using Article II Section 2 to defend torture, claiming the President's role as "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" cannot be limited in any way. As if this claim of absolute Presidential authority is not frightening enough, Kevin Drum suggests today that torture is unconstitutional as well.
A "LESS CRAMPED" VIEW OF TORTURE....Compare and contrast the following passages:

From the Convention Against Torture, ratified in 1994 and currently the law of the land:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
From an April 2003 report by the Department of Defense:
In order to respect the president's inherent constitutional authority to manage a military campaign ... (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority.
Considering the United States ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 21 August 1994, one would think a ban on torture is the "law of the land" in congruence with Article VI of the US Constitution. But those tricky lawyers under Bill Clinton got an important opt out clause written into the US ratification:
On 3 June 1994, the Secretary-General received a communication from the Government of the United States of America requesting, in compliance with a condition set forth by the Senate of the United States of America, in giving advice and consent to the ratification of the Convention, and in contemplation of the deposit of an instrument of ratification of the Convention by the Government of the United States of America, that a notification should be made to all present and prospective ratifying Parties to the Convention to the effect that:

"... nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States."
So torture indeed is unconstitutional in the United States. Unless we decide it isn't.

Glad I could clear that up for you.

UPDATE: The administration's lawyers have a twisted logic, but the logic is there and is apparently the same logic used to deny the constitutionality of the famous Boland Amendment in the 1980s. As you may (or may not) recall, the Boland Amendment was passed by the United States Congress in 1983 and specifically forebade the US government from providing covert military aid to any forces seeking the overthrow of the government of Nicaragua. Reagan's supporters argued it was an unconstitutional limitation on the Commander-in-Chief powers of the President, as they (and every other President) said of the entire War Powers Resolution.

If the Congress cannot limit the actions of the President as Commander-in-Chief via laws such as the War Powers Resolution or the Boland Amendment, why do we think the Congress can limit the President with the Torture Statute? This problem goes far beyond George W. Bush.

2 Comments:

At 11:39 AM, Anonymous Anonymous said...

I fail to see how a ratified treaty that bans cruel and unusual interrogation techniques would be considered unconstitutional...

But until the administration officially makes that claim and backs it up with a legal argument rather than a flimsy hypothetical conjecture (it "may be unconstitutional if..."), the congressionally-ratified treaty is still the law.

-Patrick (G)

 
At 3:13 PM, Anonymous Anonymous said...

The administration's lawyers have a twisted logic, but the logic is there and is apparently the same logic used to deny the constitutionality of the famous Boland Amendment in the 1980s. As you may (or may not) recall, the Boland Amendment was passed by the United States Congress in 1983 and specifically forebade the US government from providing covert military aid to any forces seeking the overthrow of the government of Nicaragua. Reagan's supporters argued it was an unconstitutional limitation on the Commander-in-Chief powers of the President, as they (and every other President) said of the entire War Powers Resolution.I think you are confusing a 'precedent' argument with a logical argument. "That's the way we've done it before" isn't an argument based on logic. Especially, not when the results from before were...so nearly disastrous For Reagan, Bush, Poindexter, North, etc.

The claim that Boland amendment, and/or the Convention against Torture is unconstitutional is pure bluff that would not withstand a true legal challenge.

-Patrick (G)

 

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