Thursday, June 10, 2004

Apologia Pro Tormento: The Walker Memo

Michael Froomkin analyzes the 'Torture memo' and finds the same argument so often used by the Bush Administration undergirding it: unlimited executive powers. In this case, the Administration argues, as it has before in 'enemy combantant' detensions, that the Presdient's role of Commander-in-Chief cannot Constitutionally be limited in any way by acts of Congress. The assumption of this philosophic position is that the authority and powers of the English Crown were passed to the President, except as specifically limited by the Constitution. As with any poor choice of premise, the result is a argument which is logical and self-consistent, and entirely erroneous.

America hasn't any king, and we would cease to be America were we to acknowledge one, even in the limited a fashion the Bush Administration would wish us to. What these people argue for is a form of what was known to the Nazis as the Fuehrerprinzip, or the concentration of all authority in the leader. All initiative and power are vested in one man, who embodies the spirit and force of the State. All authority flows from the Fuehrer, to lesser Fuehrers, much as Bush's authority flows to Bremmer, or to Rumsfeld, or to Ashcroft. Each Fuehrer has absolute power in their own sphere, and is answerable only to their superior Fuehrer, much as Bremmer, et al, are apparently unwilling to be unaccountable to any but Bush in their use of dictatorial powers.

By reaching outside the Constitutional framework for absolute and unaccountable power, the Bushies are in effect making a bid for expanding Presidential power into the functional equivalent of dictatorship in every way. Not satisfied with the scope of the tools of Presidential action such as the executive order and directive being limited to war, foreign affairs, and the operation of the Executive Branch, the Bush partisans seek to expand their scope through using the warmaking powers of the Commander-in-Chief, and then making everything in creation an instrumentality of war. An interesting study of the use and misuse of executive power by the Heritage Foundation in February of 2001 rightly highlights to potential for repression and dictatorship by vesting an unchallengable legislative power in the President. They point to the alleged abuses of President Clinton, of course. Oddly, one does not hear so much on this topic from the Heritage Foundation any more...

Added 6/11: Having read the memo more closely, one section stands out as highly relevant to the torture at Abu Ghraib and other prisons and bases around the world where prisoners of the Iraq and Afghani actions and the 'war on terror' are held. The passage relates to affirmative defenses to torture under the Uniform Code of Military Justice.

"The existence of war does not in and of itself justify all forms of assault. For instance, in US v. Calley, the court recognized that "while it is lawful to kill an enemy in the heat and exercise of war, to kill such an enemy after he has laid down his arms…is murder." Further, the fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment." The thrust of these holdings is that even in war, limits to the use and extent of force apply. [ed.-underline added]


Near the end of 2002 and into 2003 the Judge Advocates General corps staged a near revolt over the new rules for interrogations at GTMO. The eventual loss of this administrative pissing match led them to seek outside counsel and to discretely leak their concerns to the ACLU (see the section entitled The Roots of Torture). Finally, the JAG corps, who supervise directly all military interrogations in the normal course of operations, were removed from Abu Ghraib, and the facility was placed under the direct command of Military Intelligence. If you wanted to create an enviroment in which the guards would have an 'under orders' defense available to them, as described by the Walker Memo, one would have to take these very same steps. By eliminating JAG oversight, and placing Abu Ghraib under the direct command of MI, the stage is set to torture prisoners and give soldiers the best chance of aquittal for the crimes you ordered them to commit.

The likely plea of the three soldiers facing general courts martial thus far? You guessed it. According to lawyers of the soldiers, they were only following orders and didn't know thier orders were illegal. They had no access to counsel, no superiors with the requesite training to advise them. Their MI superiors who engaged in torture and gave the orders? No word on that yet, but we do know the contractors and MI personnel regularly wore uniforms with no identification and even donned disguises to commit their crimes. Surprisingly, this simple means of getting away with crimes against humanity is not discussed in the memo, but it seems to have been fairly effective none-the-less.

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