The Justice department has released the full text of the infamous 2003 “torture memo” dismissively brushing aside the legal restraints on military interrogators. The torture part of the memo — and cruel, degrading and humiliating treatment whether dressed up as “enhanced” or “aggressive” interrogation is still torture — is alarming enough but what is really chilling is the legal underpinning.
The memo, which originated in the department’s Office of Legal Counsel, argues that the president’s inherent powers in wartime overrode any federal law or international treaty, raising in the layman’s mind the point, why bother to have laws and treaties?
Our government is supposed to be one of checks and balances but the Office of Legal Counsel saw no check on the president’s powers. The courts had no jurisdiction on what Americans did overseas and in any case “Congress cannot interfere with the president’s exercise of his authority as commander in chief to control operations during a war.”
This was one step on the path to the Bush administration’s assertion, until the courts knocked it down, that the president had the power to snatch an American citizen on U.S. soil and hold him incommunicado in solitary confinement indefinitely, without charge, trial or counsel.
The memo applied to military interrogators only and it was drafted after the uniformed military lawyers rebelled at an earlier memo authorizing techniques that the armed services also did not approve of. It is instructive that the top lawyers for the military services were excluded from the drafting of the second memo and only learned of its contents much later.
Fortunately, the American public hadn’t been scared out of its sense of outrage. The memo was rescinded 10 months later in December, 2003, to be replaced the following year by a Justice department legal opinion asserting “torture is abhorrent both to American law and values and to international norms,” which the rest of us had assumed was the case all along.
That was put into law in 2005 when Congress ordered military interrogators — but not those of the CIA — to abide by the Army Field Manual and the Geneva Conventions.
Perhaps this memo should be enshrined at the National Archives along with the Constitution and the Bill of Rights as a salutary warning that those protections should not be taken for granted.