MuD & PHuD

The Torture Memo

I taken some time to skim through the torture memo that I first referred to here. Let me make it clear that I am not a lawyer, Constitutional scholar nor have I ever served in any branch of the Armed Forces. I am reading this memo as a layperson, but more importantly as a Citizen of the United States of America. This, being a free country, is well within my rights and I hope that you will consider reading the whole thing for yourself. Whether or not you take the time, let me point out a few passages I found enlightening and potentially important (bear in mind that I transcribed these from a sometimes-low quality PDF (hat tip The Command Post)):

Let's cut to the chase. Here's the passage that I think is going to get some people pretty upset:

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 se the terms and conditions under which the President may exercise his authority as Command-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 constructions of Sections 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 Sections 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 Command-in-Chief authority.

I can only assume that they are technically correct. If you forget, for a moment, that we're taking about torture, the argument seems pretty reasonable. Congress has no right to regulate the President acting as Commander-in-Chief during a war. Simple enough. One wrinkle I see is simply whether or not we are at war (in the formal sense) and if so, with whom? Specifically, are we at war with the people we have been accused of torturing?

Here is a passage that contains an argument very similar to the one I made previously concerning the necessity of torture under some circumstances:

B. Necessity
The defense of necessity could be raised, under the current circumstances, to an allegation of a violation of a criminal statute. Often referred to as the “choice of evils” defense, necessity has been defined as follows:
Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and
(b) neither the Code or other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

With respect to the old But the Boss told me to defense, the memo had this to say:

Under both international law and the U.S. law, an order to commit an obviously criminal act, such as the wanton killing of a noncombatant or the torture of a prisoner, is an unlawful order, and will not relieve a subordinate of his responsibility to comply with the law of armed conflict. Only if the individuals did not know of the unlawfulness of an order, and he could not reasonably be expected under the circumstances to recognize the order as unlawful, will the defense of obedience or a superior order protect a subordinate from consequences of violation of a law of armed conflict.

And finally, an issue that I have wondered about from time to time:

C. Applicability of the United States Constitution

1. Applicability of the Constitution to Aliens Outside the United States

Nonresident enemy aliens do not enjoy constitutional rights outside the sovereign territory of the United States. The courts have held that unlawful combatants do not gain constitutional rights upon transfer to GTMO as unlawful combatants merely because the U.S. exercises extensive dominion and control over GTMO. Moreover, because the courts have rejected the concept of “de facto sovereignty,” constitutional rights apply to aliens only on sovereign U.S. territory. (See discussion under “Jurisdiction of federal Courts” [illegible]).

Although U.S. constitutional rights do not apply to aliens at GTMO, the U.S. criminal laws to apply to acts committed by virtue of GTMO’s status as within the special maritime and territorial jurisdiction.

That's all I had the time (and attention span) for tonight. I hope everyone will take at least a cursory look at this memo. I think you'll be hearing a lot more about it, and (as always) it's better to see it for yourself rather than relying on the ever-useless Media to interpret it for you.

Update:

Junk Yard Blog has some great commentary on what he refers to as the old Bait and Switch currently directed at Ashcroft and the Bush Adminstration. Give it a read.
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