Friday, May 01, 2009

More About Those Damned CIA Torture Memos

Something just occurred to me.
It could be important.

In all of the discussion over the so-called CIA torture program memos authored by John Yoo, Jay Bybee and Steven G. Bradbury, the attention has been focused on how shocking it is that these attorneys in Bush's Department of Justice would assign such plenary powers to the president as they do. That's got everyone straining at the legal gnat of whether the memos constitute just very sloppy legal practice or an actual conspiracy to subvert the law. And sure, I succumbed to the same lure in my latest post on the subject.

Not that I really believe that to be a gnat; in starkest terms you could say that the DoJ under a succession of Bush-appointed Attorneys General (Ashcroft, Gonzales, then Mukasey) actually mounted a sustained attack on the Constitution of the United States of America. With their partisan Republican machinations they not only enabled numerous crimes, but in doing so they were in defiance of certain core constitutional principals, not the least of which are the separation of powers doctrine and Article V - the one that defines how the Constitution can be amended. Because make no mistake, when you purport to suspend habeas corpus, then the Supreme Court rules against you, and you continue to deny the litigant key habeas rights, you have effectively nullified the entire protection.

The first, fourth, eighth and ninth amendments seem to have been gutted during Bush's term in office as well. I must have missed the part where these changes were "ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress." It wasn't in the news.

So -- it's fair to ask; when did mid-level worker bees in the Justice Department acquire the power to amend the Constitution outside of the provisions of Article V? Because I find it hard to see that as anything short of a coup d'etat; a major intrusion on the Congress's exclusive power to pass legislation.

Looking at the Bush administration through the eyes, as it were, of Article V puts a whole new level of appreciation for just how far they went towards shredding the Constitution in toto, and I humbly submit that I've contributed some insight of value into the analysis of recent history on that point. But wait, that's not the important thing that just occurred to me. And thanks for hanging around while I set up for the delivery of this lightbulb moment.

Here it is: All of these memos were dealing with a hypothetical. They discuss whether, IF Bush were to authorize something like the CIA torture program, it would stick. Would he have the authority as Commander in Chief to over-ride the various US statutes against that sort of thing, the Geneva Convention, and whatever other treaties the US has entered into that prohibit torture? (The correct answer, which neither Bybee, Yoo nor Bradbury got, was and remains NO, he does not. The legal supremacy of ratified treaties is in Article VI of the Constitution)

By now you must see where I'm going with this. All of these memos remain hypothetical until one key question is asked and answered. Did president Bush the Lesser actually sign an Executive Order that authorized torture? A secondary question would be; to whom was such an order distributed and through what channels? And the sticky part of it is that neither question can be answered without putting someone, either Bush himself or someone in the chain of command, into serious legal jeopardy.

I can't believe that no-one else has thought of this yet, especially those attorneys with courtroom experience.

I came to this thought while playing a game of 'let's try to think like a lawyer.' If you were preparing a real case which you expected to bring into an actual court of law, you'd want to connect the dots in a very meticulous way. So imagine that a certain CIA operative - call him Mr. X - has been positively identified as having done some of the hands on work of questioning a suspected terrorist, and is trying to defend himself using the dubious claim that he was following, in good faith, the Department of Justice's assurances that he was in the clear legally. (In my opinion this is the Nuremberg Defence, and is not really relevant under the applicable laws, but just for the sake of the argument...)

So, Mr. X can demonstrate that he was in receipt of the __________ (Yoo, Bybee, Bradbury) memo of ______(date) which tells him that the president's plenary powers as Commander in Chief give him the authority to authorize torture. Does that alone take Mr. X off the hook?

Of course it doesn't. Mr. X needs both the DoJ opinion AND an Executive Order from president Bush. Because all the DoJ opinion can possibly do, at the very maximum, is to confirm the validity of the Executive Order. In the absence of the EO, the opinions of Bybee, Yoo and Bradbury, as I noted above, are nothing more than exercises in how to make bad law. And yes, shabby attempts to amend the Constitution of the United States of America at the bureaucratic level.

Consider the absurdity of any defense Mr. X might make that fails to demonstrate the existence of this Executive Order (that everyone seems to assume must exist, but it certainly hasn't yet been publicly acknowledged.) Suppose X's attorney argues that a Deputy or Assistant Attorney General working at OLC had, through the mere writing of a memo;
a) assigned powers to the president which are not described in Article II of the Constitution and have not been created through legislation,

b) delegated those same powers to himself, through some magical and invisible assignation of Power of Attorney, without the president's knowledge, and

c) exercised those powers in a manner hitherto unknown in the history of jurisprudence, within the same memo that created them.
Do you think that would convince a judge? I mean, presuming the judge is not the Ninth Circuit's Jay Bybee? Of course not, but that is the assumption under which all these torture memos have been discussed so far. And at the risk of hammering my point so far into the ground that it disappears, here's some parallel logic; IF I had a deed to your house, I could charge you rent. So pay up.

Until such time as a Bush Executive Order authorizing torture is made public, the rest of the discussion is moot.
End-note: Before I get called on it, there are all sorts of indications that Bush did indeed authorize torture, but no official acknowledgement as such. It's almost like they're hoping to have their cake and eat it too.

Dan Froomkin reported in the Washington Post last year that Bush authorized the meetings where Cheney, Gonzales, Rumsfeld, Rice et. al. discussed the details of torture, and admitted as much. He did not however admit to attending those meetings himself. Froomkin notes how much media attention this story (which originated at ABC) got: "There was no mention of Bush's admission in the New York Times, the Wall Street Journal or the Los Angeles Times. There was nothing on the major wire services. And nothing on CNN, CBS or NBC." Way to go, Lamestream Media!

Even before that, you could find indications that the Executive Order in question did indeed exist, such as this story in the New Standard: President Authorized Abu Ghraib Torture, FBI Email Says.
Repeated references in an internal FBI email suggest that the president issued a special order to permit some of the more objectionable torture techniques used at Abu Ghraib and other US-run prison facilities around Iraq. The email was among a new batch of FBI documents revealed by civil rights advocates on Monday. Other documents describe the initiation of investigations into alleged incidents of torture and rape at detention facilities in Iraq.
While this may have had an impact at the time on the dubious 'a few bad apples' meme that was then (Dec. 2004) going around, it was not very widely circulated. Anyway, my point is not whether the EO exists so much as whether it is publicly acknowledged. The story goes on to indicate it was not;

After the ACLU released the documents, White House, Pentagon and FBI officials told reporters that the author of the email was mistaken, and that the order was not an Executive Order, but a Defense Department directive. All sources refused to be identified in news reports.

The White House does not appear to have ever officially denied that President Bush issued an Executive Order specifying interrogation techniques, though none has been made public. The ACLU and other organizations involved in forcing the release of documents regarding prisoner treatment at Abu Ghraib as well as prison camps in Afghanistan and Guantánamo Bay, Cuba have demanded the White House "confirm or deny the existence of such an order," according to an ACLU press release issued on Monday.

How can any document possibly have any legal weight if;
a) it is never acknowledged and therefore
b) no court ever gets to review it?

The very idea that a single person could make secret laws is abhorrent and in conflict with the basic concepts of democracy. The idea that those secret orders could result in the torture and death of innocent people is doubly so.


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