A Mind That Suits What doesn't kill me, makes me laugh... usually.

Monday, June 07, 2004 :::
A Little Outrage Would Be Nice

The Wall Street Journal proved its indispensability this morning by running a long analysis of a memo prepared for Donald Rumsfeld. Jess Brown, the Journal reporter, saw only a draft. The final version has been classified by Mr. Rumsfeld until 2013, but it can be safely assumed that its contents will become public long before then. As will the identity of the people who drafted it, and any actions that were based on the legal reasoning they used, if you can call it "legal" or "reasoning."

It does not appear to have gone to the President. Let’s hope that turns out to be true.

What a memo. It outlines a legal defense that would excuse torturing the prisoners at Guantanamo Bay. Torture happens to be illegal for any officer of the United States, as long as that officer is overseas. Guantanamo Bay is US territory. There are laws governing the conduct of government officers on US territory, and they, too, not surprisingly, ban torture. The memo argued, in essence, that as long as officers are dealing with foreign nationals on US soil, no set of law applies to them.

The mind reels. What this would do to our ability to negotiate extradition of terrorists from other countries is enough to appall, all on its own, once one gets past the general horror of it.

But there’s more.

What truly takes the breath away is the central argument that, in the prosecution of war, the Commander-in-Chief can set aside any law if he deems it necessary. Now, everyone realizes that with Maryland about to secede, Abraham Lincoln was probably correct to use the Naval Academy as a site to land enough troops to take over the state legislature. And if someone had information about a bomb that was known to be planted and set, to use an example cited in the article, only the most raving civil liberties extremist would object if a few bones got broken extracting the information.

But to go from there to a general ability of the President to set aside the laws of the country if he saw fit? For members of a party that praises “intentionalism” in interpreting the Constitution, this one should not even be a question.

This has nothing to do with the applicability of the Geneva Convention. That convention specifically applies only to soldiers of an established government who serve in a regular army that has a chain of command and a distinctive uniform. That is why even Donald Rumsfeld felt the need to stress that the Convention applied to the Aghan Taliban, as they were soldiers of an established government. But when saying, accurately, that the Convention does not apply to al-Qaeda operatives (the very prisoners whose treatment was covered by this memo), we did seek to reassure our allies that we were not going to do anything barbaric. Other countries do indeed adopt a nearly suicidal interpretation of the Geneva Convention, and their doubts about us are only going to increase. Like it or not, we will have to negotiate with them over prisoners.

But this is not about a treaty. This is about how the United States is governed. Is the United States governed by law, or by decree?

The law is not perfect or complete. It is easy to imagine a situation that has not been covered by US law. Every day, advances in technology provide new ways of doing everything, including saving lives and taking them. And emergencies, as already discussed, pose difficult questions.

It is not easy to see how a generalized authority to set aside the law squares with anything the Constitution says. Yes, the President is “Commander-in-Chief of the Army and Navy,” but no duties or rights that inhere in that title are spelled out. What is spelled out specifically is that “The Congress shall have Power... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

“Make rules.” Do we need to consult the records of the Constitutional Convention to find out what the Framers intended by that one?

There is also that little thing about “delare War.” If the President is prosecuting a war, shouldn’t he ask Congress to declare it? There was a law authorizing “all necessary and appropriate force” against the perpetrators of 9/11. That led to the war in Afghanistan. Again, anyone representing a party that stresses “intentionalism” should think twice before trying to say the word “necessary” somehow supercedes the word “appropriate.” Besides, that was not a declaration of war.

This memo was clearly leaked by a career military officer. He apparently stressed that this memo was drafted under the supervision of political appointees. Anyone familiar with the ways of Washington should be a little leery of accepting that as a given, but it may well be true.

It is certainly true that in his war against the Pentagon bureaucracy, Mr. Rumsfeld neglected one very serious reality: bureaucracies are very adept at fighting back. Somebody’s head should roll over this, and if it is his, perhaps he can spend his remaining years pondering how, when you yell “you just don’t get it” at people who disagree with you, somebody in the room will start looking for the perfect chance to get you.

This memo has been around for a while, but it came out right after Abu Ghraib. Perhaps this person saw that the investigation was moving rapidly up the chain of command and he needed to cover his own uniformed backside. Or perhaps he is simply a very adept leaker who waited until the perfect moment after the intial wave of publicity began to ebb.

As the world mourns Ronald Reagan, it is interesting and gratifying to see that now even Mikhail Gorbachev recognizes the central role that the President played in ending the Cold War. But it is worth remembering that the Cold War was very messy and bloody, and we were often confronted with a choice of miserable, revolting allies. There was little we could do about that. But it should be a well-remembered lesson that whatever any of our allies did was held against us, as if that made us the same as the Soviets.

But this memo came from our government, not some seedy ally's. Why someone would even think it would lie buried forever is an interesting question. It certainly shows they did not learn that hard Cold War lesson. But that may be the least thing that someone capable of writing this never learned.

::: posted by A Mind That Suits at 2:20 PM



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