Monday, June 07, 2004

Whatever happened to "no one is above the law"?

INTEL DUMP and Atrios points us to this WSJ article (subscription required) that provides us with some insight into the legal thinking of the Bush administration. The article describe a legal memorandum prepared by the Pentagon's Office of General Counsel as part of an effort to find legal justifications for coercive interrogation (i.e., torture). It contains the following gem:

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."

So the legal minds of the Bush administration consider it an operating assumption that the President has the "inherent" authority to set aside all laws.

Update:

These guys really do like turning things on their head don't they? Consider this:

The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued. Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the "necessity" of using such methods to extract information to head off an attack, or "superior orders," sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no "moral choice was in fact possible."

Short history lesson: the conclusion of the Nuremberg tribunal was that "just following orders" was not a legitimate defense when it came to accusations of war crimes. But, once again, the great legal minds of the Bush administration studied history and concluded that the Nuremberg trials could be used in defense of accusations of torture!

Admittedly, I do not have access to the memorandum in question, so I can't argue that this conclusively proves that these guys are a bunch of inhuman monsters (INTEL DUMP has more on the legal niceties). But the point remains that the Bush administration was actively in search of ways to get around the law and, if that couldn't be found, ways to simply say that the law didn't apply to Bush.

Again, I ask, whatever happened to "no one is above the law"?

Update 2:

Shorter version: Bush administration says there is "no controlling legal authority" with regard to the President.

Update 3:

I can't leave this alone yet. The more I think about it the more outraged I become. The essence of this argument is as follows:

  1. Anyone caught committing war crimes could argue that they were "just following orders"
  2. The President, the ultimate "giver of orders", cannot be held legally accountable because he has the "inherent" authority to set aside the law.

That anyone can read this and not be scared of the implications is astounding.

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