Pentagon invokes Nuremberg defense

The Wall Street Journal reports today (subscription required) on a 100-page memo written by "political appointees" at the Pentagon that lays out how U.S. military and intelligence personnel can get around laws prohibiting torture.

The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful. 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.

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. 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."

The draft report was deemed "classified" by Rumsfeld and intended to be secret until 2013. Now leaked by some unhappy camper in the Pentagon, it will almost certainly be used by the low ranking defendants on trial for the Abu Ghraib abuses.

Even more astonishing is the constitutional powers that President Bush can claim --"presidential power at its absolute apex," according to a military lawyer who helped prepare the report (and who, by talking to the Journal, evidently disagreed with his civilian counterparts).

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. It concluded that neither the president nor anyone following his instructions was bound by the federal Torture Statute, which makes it a crime for Americans working for the government overseas to commit or attempt torture, defined as any act intended to "inflict severe physical or mental pain or suffering." Punishment is up to 20 years imprisonment, or a death sentence or life imprisonment if the victim dies.

"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 report asserted. (The parenthetical comment is in the original document.) The Justice Department "concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president's constitutional power," the report said. 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 in purpose and energy in action that characterize the presidency rather than Congress."

Phil Carter has more and reminds us of this little clause in Article II of the Constitution -- that unhappy document that has proved so nettlesome to our current administration:

Section 3.

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

"...he shall take care that the Laws be faithfully executed..." It does not say, "the President shall use loopholes, evasions, secrecy, and a disdain for congress to violate the law, and create an implicit environment where his subordinates feel they have free rein to commit torture."

The kinds of assumed presidential powers described in the memo were specifically the kinds of absolute powers the Constitution was written to prohibit.

The irony that this story, which describes humiliation tactics and physical coercion very similarly to what was carried out at Abu Ghraib, appears opposite

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