Shock and awe about the DoD memo

IN THE NEWS
Wow. Reading the Department of Defense memo leaked to the Wall Street Journal, I'm suddenly reminded about the importance of primary sources. If you're serious about a subject, go straight to the original documents. Don't trust a filtered perspective on them.

How does this principle apply to the DoD memo? After reading the portions that are available, it's actually worse than I thought it would be. I expected the excerpts in today's news articles and blogs to be the juiciest bits. I was wrong.

For example, this quote is fairly alarming:

Third, many legal authorities include the requirement that the defender must reasonably believe that lawful violence is "imminent" before he can use force in his defense. It would be a mistake, however, to equate imminence necessarily with timing--that an attack is immediately about to occur. Rather, as the Model Penal Code explains, what is essential is that the defensive response must be "immediately necessary."

Here it is: the attempted pollution of US law with the Bush Administration's odious notion of preemptive war. And it gets worse:

As DOJ has made clear in opinions involving the war on al Qaida, the nation's right to self-defense has been triggered by the events of September 11. If a government defendant were to harm an enemy combatant during interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaida terrorist network. In that case, DOJ believes that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions. This national and international version of the right to self-defense could supplement and bolster the government defendant's right.

In other words, simply by invoking the talismanic power of 9/11, someone in the military, the CIA, or other arm of the US government could break the law while interrogating someone he thought might have information about al Qaida. The state of nature in the international system is now codified in US law, according to this line of reasoning. Now, I'm no rosy-cheeked innocent--I know what people in the US military and intelligence services have done in the name of national security. However, when they overstepped the law, they also expected to be prosecuted, if caught. (And the echo chamber between the DOJ and the DOD must be pretty loud to drown out the obvious rebuttals to this line of reasoning.)

Who deserves harsh treatment during interrogation? Anyone designated as a possible al Qaida informant. Unfortunately, the burden of proof, according to this memo, is on the prisoner, if he claims he's not connected to a terrorist group. "Non-resident aliens" already are assumed to lack Fifth Amendment protections. Far worse, though is the memo's argument that the Eigth Amendment protections against cruel and unusual punishment apply only to convicted prisoners. The accused al Qaida sympathizers at Guantanamo Bay and elsewhere, in a darkly Kafkan twist, have fewer rights for being detained than if they had been tried and convicted. If you're not depressed already, then read the section where the memo's author takes great pains to assert how subjective the definitions of cruel and unusual can be--to the point of nearly arguing them out of existence.

The memo once again conflates the nation at war with the individual interrogator in a later discussion of the use of force against prisoners. Since the authorities who run a jail have the right to use force to quell riots and otherwise maintain order, "it follows a fortiori that the interest of the United States here--obtaining information vital to the protection of untold thousands of American citizens--can be no less valid." The interrogator isn't a representative of the United States, bound by US law; the interrogator is the United States, whose duty to itself is to use whatever nasty, brutish, and short interrogation techniques needed to get quick results.

Since other writers have spoken eloquently and at length already about the memo's preposterous argument that the President can "set aside" laws when deemed necessary, I won't repeat the same arguments here. Suffice it to say, I don't want to live in a country where any part of the government has this kind of license. It's exactly the kind of situation the Framers, in defining the messy system of overlapping powers, wanted to avoid. No Constitutional check against tyranny is possible if, on the word of someone in the executive branch, US forces can capture suspects, detain them in a secret location for an indefinite amount of time, refuse their demands to have access to lawyers, not bring them to trial, and then torture them for information you think they might have. If, in the process, you break US laws and violate treaties and conventions to which the United States is a signatory, you can always claim you didn't know it was a crime, you got a free pass from the President, or the national right of self-defense made you do it.

I'm not a lawyer, but I have had a life-long interest in Constitutional law. This memo isn't a shining example of American legal scholarship. I'm just speculating here, so please take the next statement with a grain of salt. In this memo, I don't hear the voice of someone genuinely struggling with complex Constitutional and moral issues. It sounds more like someone giving some superior the arguments he or she wanted to hear.

Comments

[Joe Nagarya]

You're hearing the voice of a vindictive, petty, sadistic little prick named Napoleon Mussolini Bushit.

Nixon began the cancer with his assertion, "If the president does it, it isn't illegal." Cheney and Rumsfeld have apparently been all along in making that anti-Constitutional argument successful this time.

Now, if they knew 9/11 was going to heppen, but the let it happen because they needed the "imminent" threat, then they were never about anything positive. Never about love of country. Never about patriotism. They were about undermining and destroying our system; or so radically transforming it into Reagan-Norquist "conservatism" which would make major changes not only in the political landscape but also in the Constitutional. Something of a throwback: those with money have rights; those who do not don't even get to vote.

[Oscar]

There is much of interest here. Note that the "Reservations and Understandings" on the part of the US which are part of the ratification of the Convention on Torture were made in 1994, during Clinton's administration. And that enabling legislation was not enacted at that time because it was believed "that existing state and federal criminal law as adequate". Thus it would appear that the views in this study are similar to those of the Clinton administration.

That said, torture, reasonably defined is wrong, and also rather useless. The only effective use of torture has consistently been to extract confessions (think of the Inquisition, the Soviet show trials etc.) rather than useful information.

This report makes unpleasant reading, but some reports I saw in the 60's about nuclear attacks and their aftermath were worse. The contemplation of repugnant acts may sometimes be required, but is never pleasant reading.

Maybe I will have more after reading the entire thing, but I am off to a meeting, and wanted to post my first thoughts now.

[Oscar]

After further reading, the memo available seems way over the top. A good take on it is at:
http://www.discourse.net/archives/2004/06/apologia_pro_tormento_analyzing_the_first_56_pages_of_the_walker_working_group_report_aka_the_torture_memo.html
I can't wait to see Gene Volokh's take on it:
http://volokh.com/

[Oscar]

Found a good blog covering this topic and others run mostly by lawyers (it seems):
http://punishmenttheory.blog-city.com/

[Kingdaddy]

Oscar, thanks for the links to other discussions of The Memo.

You raise an interesting point, comparing the nuclear balance of terror to the torture of terrorists. However, the Cold War seemed like a classic Mexican stand-off: out of self-defense, both sides kept their nuclear weapons pointed at each other. Like gunfighters, each side also looked the other in the eye, scanning for any sign that the enemy might lose his nerve about actually pulling the trigger.

That's a situation completely different from Abu Ghraib. There was no "us or them," or ticking bomb about to go off (see my discussion on this in an earlier post), or promise of absolute destruction. There was just a helpless captive, who may or may not have information about future terrorist attacks (which always take a lot of time and care to plan and execute), and a lot of different options for getting information out of him. Or her, like the elderly woman ridden like a donkey.

[Ali]

Abu Ghraib reminds me of this piece of even greater foolishness:

http://www.bbc.co.uk/history/war/troubles/origins/internment.shtml

A military disaster for the Brits. Without the power base that Internment provided for PIRA they'd have withered away. Fortunately the British got much more subtle with time.