The Senate Judiciary Committee had a chance to grill Attorney General Ashcroft yesterday about the notorious torture-is-legal memo. This would have been a good opportunity for the Dubya Squad to repudiate the memo’s conclusions about the power of the president to nullify laws and treaties, and about the legality of torture, if they cared to.

Apparently, they don’t care to.

When asked whether the administration had decided that torture was legal and had approved of its use, the closest thing to a denial that Ashcroft came up with was this: “I want to confirm that the president has not directed or ordered any conduct that would violate the Constitution of the United States, that would violate any one of these enactments of the United States Congress or that would violate the provisions of any of the treaties as they have been entered into by the United States, the president, the administration and this government.”

All of which sounds good… until you realize that the memo in question was arguing that torture, when done with presidential approval, did not violate the Constitution, United States law, or any of the country’s treaty obligations because the president’s directives in the conduct of war are a higher law than any of these. So instead of being denials, Ashcroft’s remarks are really just slippery.

When asked whether his department will prosecute Americans who commit torture, Ashcroft responds: “The Department of Justice will both investigate and prosecute individuals who violate the law” (emphasis mine), again begging the same question. (However, he did say directly at one point that the president had not issued an order immunizing interrogators of Al Qaeda suspects from prosecution “based on the tactics they use.”)

Ashcroft even gave a strange back-door defense of the core argument of the memo: that the commander-in-chief’s war-conducting mandate puts him and those under his command above the law. This happened when Ashcroft was defending his decision not to release the text of the memos to Congress. In the course of this defense he read a quote* that he’d brought along from Frank Murphy, whom Franklin Roosevelt appointed as his Attorney General in . Ashcroft:

He [Murphy] explained in part refusing to give his opinion to the Senate, citing what was already long-established practice of attorneys general in . He put it this way. And I’m quoting.

While the constitutional powers of the president in time of war, now the quote starts, “have never been specifically defined and, in fact, cannot be, since their extent and limitations are largely dependent on conditions and circumstances. The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the executive to take such action.”

I’m not doing anything other than to say that there is a long-established policy reason grounded in national security that indicates that the development and the debate of hypotheses and practice of what can and can’t be done by a president in time of war is not good government.

And so it goes for the length of Ashcroft’s answers — denials that the administration is doing anything outside the law, in the shadow of a memo that has concluded that nothing the president does or orders done in the furtherance of his war-conducting mandate can be outside the law.

The Committee’s chair, Senator Hatch, gave Ashcroft a little verbal wink in his concluding remarks: “You’ve had to be very careful with what you’ve said here today,” Hatch said. “And I fully understand why. And I think any reasonable person who looks at it understands why, too.” I think I understand.


* If you do a google search for this quote, you’ll probably only find it in a small handful of places on-line, but one of them is a paper entitled The President’s Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them by Robert J. Delahunty and John C. Yoo. If those names sound familiar to you, it’s because last month’s terrible news articles about Justice Department memos justifying torture were describing memos authored by… Robert J. Delahunty and John C. Yoo.


The not-quite-complete text of the memo has been released (though not by Attorney General Ashcroft). According to its sage legal advice, not only has Congress failed to prohibit the president from authorizing torture — it is powerless to do so:

In order to respect the President’s inherent constitutional authority to manage a military campaign, 18 U.S.C. § 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war. The President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander-in-Chief. A construction of Section 2340A that applied the provision to regulate the President’s authority as Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude that it does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.

And here’s the twisted way this is worded later in the memo:

Just as statutes 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. [emphasis mine]

By “laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States” the memo’s authors mean laws that seek to prevent the President or those under his command from using torture. That they couldn’t just come out and say this, but had to use this meandering redirection, shows that they were at least half-aware of what horrible conclusions their logic was driving them to.


This link has a copy of the memo with some of the pages that the previous link is missing, for instance from the section on what has been called the “Nuremberg defense.” Alas, this link is missing some pages that the previous link has. You’ve got to go back and forth between them to get as much as there is to get (which still isn’t the whole thing).

Sometimes when you read the source documents that a news article was based on you find them to be fairly mundane, with the juicy bits already excerpted by journalists — sometimes deceptively out-of-context to make them seem especially dramatic. In this case, however, the chill I felt from reading the original document is an icier and deeper one.



Another copy of the latest memo is on the Wall Street Journal’s site (link). I haven’t looked it over too much yet so I don’t know if it’s more complete than the other two.


Yet another copy has been put on-line by NPR (link). It appears to be from a different source than the others, though it cuts off at the same page.


And in other news…

World military spending surged during , reaching $956 billion US, nearly half of it by the United States as it paid for missions in Iraq, Afghanistan and the war on terror, a prominent European think tank said Wednesday…

The $956 billion spent on defence costs worldwide corresponded to 2.7 per cent of the world’s gross domestic product, according to the annual report…

The United States led the world in defence spending, accounting for 47 per cent of the total, followed by Japan with five per cent and Britain, France and China, with four per cent each.


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