Tornado Alley (PROG)

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Putting hoods on the heads of Congress
Friday, June 11, 2004
David Sarasohn
http://www.oregonlive.com/news/oregonian/david_sarasohn/index.ssf?%2Fbase%2Feditorial%2F108695518299...

O nce again, we've all been distracted by sensational news pictures and missed the real point.

It seems that while we were all looking at photos of tortured and dead Iraqis, there's been a change in the form of government in this country.

At least nobody made us get naked for it.

Still, that's the clear conclusion of the document unearthed this week by The Wall Street Journal, a 56-page memo on "Detainee Interrogation in the Global War on Terrorism," prepared by a team of administration and military lawyers just before the start of the Iraq war.

Lots of the attention on the memo has focused on its precise slicings of the definition of terror -- just how close to major organ damage or permanent mental disruption you have to get to qualify -- but what's most striking is a long section in the middle telling Congress and everyone else that it's none of their business.

It's entirely up to the president.

Now, Senator, back away slowly, with your hands in sight at all times.

Congressmen think that U.S. laws on torture actually affect the U.S. military, but are they wrong.

"In light of the President's complete authority over conduct of war, without a clear statement otherwise criminal statutes are not read as infringing on the President's ultimate authority in these areas," says the memo, prepared for Secretary of Defense Donald Rumsfeld by a working group appointed by the Defense Department's general counsel, William J. Haynes II.

". . . In order to respect the President's inherent constitutional authority to manage a military campaign, (the prohibition against torture) must be construed as inapplicable to interrogation undertaken pursuant to his Commander-in-Chief authority."

"In wartime, it is for the President alone to decide what method to use to best proceed against the enemy."

With the advice, of course, of the undersecretary of bamboo sticks under the fingernails.

The memo is direct and sweeping: Torture, like every other aspect of war, is at the entire discretion of the president, and there are no limitations on him. People who think that U.S. laws or international treaties can create any limits just don't get it.

Although, if the president decides they should, they will.

The Bush administration insists that nobody's ordered any torture, that it doesn't like torture, and that anything unfortunate that's happened is about a few bad-apple enlisted men rather than a high-level policy memo. But it hasn't said it disagrees with the idea that the president's powers are boundless, from moving money around to claiming a constitutional power to see how long prisoners can hold their breath underwater.

In fact, the memo to Rumsfeld sounds a lot like a memo written six months before, from the Department of Justice to White House Counsel Alberto Gonzales, which argued that treaties against torture "may be unconstitutional if applied to interrogation" because of presidential power.

"As Commander in Chief," explained the memo, acquired by The Washington Post and signed by Assistant Attorney General Jay S. Bybee, "the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy."

Tuesday, when Attorney General John Ashcroft testified before the Senate Judiciary Committee, senators expressed great interest in the memo and asked to see it. Ashcroft told them it was none of their business.

Told that he really couldn't claim executive privilege, he explained that he wasn't claiming executive privilege; he just wasn't going to give it to them.

After all, if Congress can't pass laws putting any limits on the government, why does it need to know what the government is doing?

The word that the president of the United States can't be bound by any treaties or laws against torture -- even signed by the president -- is not going to help our international reputation, already at Death Valley levels. But the claim that there's nothing Congress can do about it suggests that we're all living in a different country.

Even without pictures.

Reach David Sarasohn at 503-221-8523 or [e-mail]