This is not exactly new news, but still, it's worth remembering what kind of Leviathan this president created. From today's WaPo:
The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes.The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce "an extreme effect" calculated to "cause a profound disruption of the senses or personality."
Although the existence of the memo has long been known, its contents had not been previously disclosed.
More:
After a rebellion by military lawyers, then-Defense Secretary Donald H. Rumsfeld in December 2002 suspended a list of aggressive techniques he had approved, the most extreme of which were used on a single detainee at the military prison at Guantanamo Bay, Cuba. The prisoner, military investigators later would determine, was subjected to stress positions, nudity, hooding, exposure to dogs and other aggressive techniques.Largely because of Yoo's memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics. The top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo's March memo and did not know about the group's final report for more than a year, officials said.
Thomas J. Romig, who was then the Army's judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found "downright offensive."
Martin S. Lederman, a former lawyer with the Office of Legal Counsel who now teaches law at Georgetown University, said the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib.
"What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?" Lederman asked. "It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone."
Here's a key line from the Yoo memo:
In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy.
Think about how radical that is. The condition of war gives one man the right to make the rules, without oversight or accountability. Wartime gives the president virtually unlimited powers in matters related to running the war, in this view.
What's more, the memo interprets the constitutional prohibition of "cruel and unusual punishment" as inapplicable in the case of POWs because in its author's view, the Eighth Amendment protection only applies to those who have been convicted in a criminal proceeding.
It's going to take a long time to sort out and live down the damage these people have done to this country.
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And of course, it has long since been established that it is for the President alone to decide when we are at war. As Descartes said in his letter to the professiorate of the Sorbonne, "If I were not a believer, I might think that this was a circular argument."
"What's the circularity? Congress declares war. The President wages it. Pretty straight-forward to me, so I guess you have to be deeply steeped in the musings of Wendell Berry and Rod Dreher to be utterly confused by that formula."
You completely miss my point. The president no longer waits for Congress to declare war. He either tricks them into doing it, or simply proceeds without bothering them about it at all.
Ooops. Meant to say he doesnt get to make etc.
Steve
Does the president as C-in-C get to unilaterally break treaties? I havent read the constitution in about 2 weeks now but I dont remember that being in there.
Under current law, yes. Charlton v. Kelly (229 US 447) recognized Presidential power to abrogate a treaty breached by another party. Goldwater v. Carter (444 US 996) affirmed unilateral presidential withdrawal from a treaty even absent explicit congressional consent. Note that none of the opinions in the latter commanded a majority. Whether the case was rightly decided remains an open question among legal scholars.
Thanks MI. Have seen references to first, I think, and think there is room fro the idea of leaving a treaty thats broken anyway. Will look for second after I finish spading the garden.
Steve
The president may be the CnC, but it's quite clear that Congress not only decided when to wage war, but under what rules.
All these stuff about Bush about 'war powers' to do anything is total nonsense. Congress decided the rules of war, they are in charge of national defense, they create armies, etc. There's no such thing as 'national security' that lets Bush ignore laws. It's worth pointing out that Congress is the only branch of the government with any emergency powers at all, the ability to suspend habeas corpus. This stuff about the President and 'wartime' is literally complete delusion, there is nothing about that in the constitution.
Congress is, since we talk about the 'CEO president', the board of directors of the military (And government in general.). And just like any company, the board chooses to let the president operate the day-to-day operations, under their rules. They can dissolve the whole company if they want, they can even fire him, although only for cause.
As for being CnC...the only thing that means Congress can't do is issue orders directly to the military, except possibly to dissolve it. That's it. That's all CnC means, that orders come through one person, (to remove the danger of conflicting orders from different command chains) not that that person can make up whatever orders he wants in violation of the law.
People think 'commander in chief' means something that it doesn't. It doesn't mean he's the god-emperor of the military. It means military chain-of-command ends at him. He, and the orders he gives, however, are still subject to law, it's just that it's civilian law, and because he's the president he's subject to the law in an exceedingly odd way requiring impeachment.
There's a lot of confusion here because a) the president isn't normally subject to law in a traditional manner, and b) he theoretically isn't 'subject' to military law. But, while it's never happened, there's absolutely no reason he couldn't be impeached for violating military law. (There's no reason he couldn't be impeached for violating no law. Or impeached for being President of the United States on a Tuesday, something congress outlawed immediately before starting impeachment.)
Traditionally, of course, militaries operate in a top-down manner, where broad orders become more specific, and Congress micromanaging the military would be as stupid and counterproductive as a general telling privates to set up a mess tent instead of telling a major to set up camp who tells a lieutenant to set up a mess area who gets a sergeant to get some men to put the tent up. I'm not a military expert, but that's how I understand the military traditionally operates.
But if that general does walk up and order some privates to set up a tent, they damn well better do it. And the major better not claim that he's in charge and ignore the general, and likewise the president better not claim he's in charge of the rules the military operates under.
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