Wednesday, April 02, 2008

Absolute Power Corrupts Absolutely

Updated below:

So the famous John Yoo torture memo has finally been released. While we all pretty much knew what was in the memo (Part 1; Part 2.) it is still a very interesting read. It will be extremely interesting to see how the traditional media deal with it, if they deal with it at all. In a nutshell, it says that civilian law doesn't prohibit torture since it doesn't apply to the military and likewise our treaties with other countries don't apply because they only apply to uniformed enemy soldiers. The same goes for the War Crimes Act. Finally it also says that federal laws that prohibit torture don't apply to things and go on on military bases. Overall, it paints a pretty broad stroke of permission to the commander-in-chief in a time of war.

Even though this memo was rescinded it is still pretty frightening because it basically says that not only don't federal statutes and treaties apply there is nothing that Congress or the courts can do to change it.

Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President....Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

What about the Convention Against Torture? If the president orders someone to be tortured, that automatically suspends CAT:

Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions.


If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.

What this says is that the president can authorize any action at all as commander-in-chief during wartime and Congress can't stop him. The president is not bound by treaties nor can the courts stop him. The memo basically says that the president's power is virtually absolute during wartime.

One big question that is still hanging out there is what justification was used for classifying it? There was nothing in it that compromised national security. I can only assume that the DOJ and the White House thought it best not to have to justify a grant of absolute power to the president to the rest of the world.

One of the comments by KM over at TPM wraps this whole thing up pretty well...

This is genuinely chilling. What shocks the conscience is that a legal scholar from one of our most prestigious institutions of law and higher learning could in his own mind on behalf of a government seeking to find a way around legal obstacles offer the same banal rationale for perpetrating unspeakable acts of torture and cruel treatment as all other totalitarian regimes: The ends justify the means. Why? Because someone cloaked with authority says it does.

All humans self-justify. This is our nature. Our nation was founded as one of laws rather than men for the very reason of establishing limits on the worst excesses of human imagination, lust for power, and the capacity to self-justify. Perhaps such a sociopathic mindset fails to rise to the standard Yoo offers for criminal prosecution of torture only when “inspired by malice or sadism,” but this distinction is a matter of degree rather than kind and an incredibly fragile thread on which to hang our national humanity and reputation, to say nothing of the destroyed lives and sufferings of the victims.

What also shocks the conscience is that we have reached such a profound state of exhaustion or indifference to such shocking revelations that disclosure of the Yoo document is unlikely to cause much of a ripple in the news cycle.

Update: Here is the analysis from Glenn Greenwald and from Christy Hardin Smith. Both are legal beagles and much more effective at this analysis than I.

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