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.
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.