More on torture in the gulag

The Washington Post has a good editorial on the torture issue: Legalizing Torture 06/09/04.

Perhaps the president's lawyers have no interest in the global impact of their policies -- but they should be concerned about the treatment of American servicemen and civilians in foreign countries. Before the Bush administration took office, the Army's interrogation procedures -- which were unclassified -- established this simple and sensible test: No technique should be used that, if used by an enemy on an American, would be regarded as a violation of U.S. or international law. Now, imagine that a hostile government were to force an American to take drugs or endure severe mental stress that fell just short of producing irreversible damage; or pain a little milder than that of "organ failure, impairment of bodily function, or even death." What if the foreign interrogator of an American "knows that severe pain will result from his actions" but proceeds because causing such pain is not his main objective? What if a foreign leader were to decide that the torture of an American was needed to protect his country's security? Would Americans regard that as legal, or morally acceptable? According to the Bush administration, they should.

The Post also has a new article the memos from Ashcroft's Justice Department to justify torture.  They ran one Monday that seemed pretty straightforward, but I didn't link to it because the "Steno Sue" Schmidt was one of the authors.  But this one is by Mike Allen and Dan Priest, two of the Post's best: Memo on Torture Draws Focus to Bush Washington Post 06/09/04.

"This is painful, incorrect analysis," said Scott Norton, chairman of the international law committee of the New York City Bar Association, which has produced an extensive report on Pentagon detentions and interrogations. "A lawyer is permitted to craft all sorts of wily arguments about why a statute doesn't apply" to a defendant, he said. "But a lawyer cannot advocate committing a criminal act prospectively."

The August 2002 memo from the Justice Department concluded that laws outlawing torture do not bind Bush because of his constitutional authority to conduct a military campaign. "As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said the memo, obtained by The Washington Post.

Critics say that this misstates the law, and that it ignores key legal decisions, such as the landmark 1952 Supreme Court ruling in Youngstown Steel and Tube Co v. Sawyer, which said that the president, even in wartime, must abide by established U.S. laws.

The Wall Street Journal has made the text of the memo they obtained available here.  Phil Carter of Intel Dump calls our attention to this footnote #14 on p. 17 of the report, which cites the provisions of federal law that require Americans to obey the Geneva and Hague Conventions and says:

The Department of Justice has opined that his statute does not apply to conduct toward al-Qaeda or Taliban operatives because the President has determined that they are not entitled to the protection of Geneva and the Hague Conventions.

The President does not have the authority to make that determination.  Only an independent judicial determination can do so.