The Wall Street Journal has offered up free portions of the “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations” (or in other words, the legal boundaries of “successful interrogations” of “[unlawful] enemy combatants”).
It’s 49 pages long, and the best bits have been reported in the press, but this part jumped out at me:
(U) Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the Comander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective conduct of a military campaign. Indeed, such operations may be of more importance in a war with an international terrorist organization than one with conventional armed forces of a nation-state, due to the former’s emphasis on secret operations and surprise attacks against civilians. It may be the case that only successful interrogations can provide the information necessary to prevent the success of covert terrorist attacks upon the United Sates and its citizens. Congress can no more interfere with the President’s conduct of the interroration of enemy combatants than it can dictate strategy or tactical decision on the battlefiled. Just as statues that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.
(U)As this authority is inherent in the President, exercise of it by subordinates would be best if it can be shown to have been derived from the President’s authority through Presidential directive or other writing.
In other words, the report recommends that if torture of enemy combatants is considered necessary for successful interrogation, it’s best for the President to order it in writing.
Now Ashcroft is saying no order exists (written or otherwise)
Attorney General John Ashcroft, whose subordinates have written confidential legal memorandums saying the administration is not bound by prohibitions against torture, told a Senate committee on Tuesday that President Bush had “made no order that would require or direct the violation” of either international treaties or domestic laws prohibiting torture.
But in typical BushCo style, Ashcroft is refusing to show Congress the full texts of the memos (something that could silence his Senate critics):
In heated exchanges with Democrats on the committee, Mr. Ashcroft refused to provide several of the memorandums, saying they amounted to confidential legal advice given to the president and did not have to be shared with Congress.
[…]
Mr. Kennedy challenged Mr. Ashcroft, telling him he could not withhold the memorandums from Congress unless there was an invocation of executive privilege, something only the president himself can do. Mr. Ashcroft seemed uncertain when he was asked if he had spoken to the president about invoking it.
Mr. Ashcroft obviously feels that somethings (like an invocation of executive privilege) are not required in writing. Perhaps, the President’s word is good enough, you know, like a king’s or something:
While most Republican committee members defended Mr. Ashcroft, Senator Larry Craig, an Idaho Republican, told Mr. Ashcroft that he was disturbed by the growing power of the executive branch.
“I hope that in the end,” Mr. Craig said, “Saddam Hussein will not have taken away from us something that our Constitution, in large part, granted us, and that we have it taken away in the name of safety and security.”
Actually, according to Subsection3d of Executive Order 12667–Presidential Records
(d) If the President decides to invoke Executive privilege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist shall not disclose the privileged records unless directed to do so by an incumbent President or by a final court order.
Shorter memo: War crimes are okay if the President says they’re necessary.
Regardless of whether or not they’re profoundly un-American. I swear, for a party that makes a lot of noise about moral equivocators, they’re sure engaging in a spot of Pot and Kettle on that one.
hmmm…now that I re-read that last part, I’m confused by the “former president” vs. the “incumbent president” bits. Anyone know if this would applicable the DOJ memos in question and Ashcrofts refusal to give them to Congress?
Please note that the portion of the memo that is public is not all of the memo. Interestingly, it breaks off immediately after the heading titled:
“Presidential and Secretary of Defense Directives”
I think there are likely to be some revelations yet to come. Even though Ashcroft pointedly said this:
“And that’s the basis for my indicating the president has issued no order or directive directing conduct that would violate the torture statute or any of these other laws, which guide our behavior, should guide our behavior and do guide and have guided our behavior.”
(Note that if what the US was going to allow had been defined (as in the memo) not to be torture, then Ashcroft’s answer would be true on its face but not true as to substance.)
…
LEAHY: And has there been any other order or directive from the president with respect to interrogation of detainees, prisoners or combatants?
ASHCROFT: I’m unable to tell you more than that at this time.
Transcript
There is more here than has surfaced. Congress is going to get not only the memos, but any Presidential or SoD orders or policies.
Even if BushCo claims Exec. Priv. on the memos, they will have to back down in the face of outcries and potential legal action, including subpoenas.
Note also the NY Times and WaPo editorials from today:
“The Pentagon has said that Mr. Rumsfeld’s famous declaration that the Geneva Conventions did not apply in Afghanistan was not a sanction of illegal interrogations, and that everyone knew different rules applied in Iraq. But Mr. Rumsfeld, his top deputies and the highest-ranking generals could not explain to the Senate what the rules were, or even who was in charge of the prisons in Iraq. We do not know how high up in the chain of command the specific sanction for abusing prisoners was given, and we may never know, because the Army is investigating itself and the Pentagon is stonewalling the Senate Armed Services Committee. It may yet be necessary for Congress to form an investigative panel with subpoena powers to find the answers.
What we have seen, topped by that legalistic treatise on torture, shows clearly that Mr. Bush set the tone for this dreadful situation by pasting a false “war on terrorism” label on the invasion of Iraq.”
NY Times
“There is no justification, legal or moral, for the judgments made by Mr. Bush’s political appointees at the Justice and Defense departments. Theirs is the logic of criminal regimes, of dictatorships around the world that sanction torture on grounds of “national security.”
WaPo
Is the pot boiling yet?
Dan Froomkin has a summary of stuff related to this issue today in WaPo.
White House on Torture Hot Seat
“Subsection3d of Executive Order 12667–Presidential Records”
Without reading the rest of it, this is obviously specifically about release of records of past Presidents. Also, as an Executive Order, it is revokable or changable at the whim of the current President.