'Presidential power at its absolute apex'

Geraldine Sealey
June 8, 2004 2:47AM (UTC)

Salon's Tim Grieve wrote a piece last month that asked what Deputy Solicitor General Paul Clement knew, if anything, about the administration's policy on the torture of prisoners when he told the Supreme Court on April 28 that the U.S. would honor its legal obligation to refrain from "torture and that kind of thing."

"The last thing you want to do is torture somebody or try to do something along those lines," Clement told the court during the oral arguments in the Padilla and Hamdi "enemy combatants" cases. When Justice Ruth Bader Ginsburg pointed out that some governments engage in "mild torture" to obtain information, Clement retorted: "Well, our executive doesn't." Clement appeared before the court representing Defense Secretary Donald Rumsfeld that morning. Later that evening, 60 Minutes II ran the first gruesome images from Abu Ghraib prison.


Two days after the Salon piece, Rep. John Conyers, the ranking Democrat on the House Judiciary Committee, asked both the House and Senate Judiciary committees to investigate. Meanwhile, incriminating memos have emerged suggesting high-level approval of an administration policy sanctioning torture, from a Berkeley law professor who showed the White House in 2002 how to find loopholes in international law regarding the treatment of prisoners, and another by White House counsel Alberto Gonzales, who advised administration officials could be prosecuted for war crimes.

Today, the Wall Street Journal provides yet more fodder for a congressional probe. The Journal saw a draft of a March 2003 classified report, written for Rumsfeld, outlining how the president was not bound by U.S. and international laws forbidding torture. Justice Department lawyers were part of the working group that compiled the report.

From the Journal: "The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful. But at its core is an exceptional argument that because nothing is more important than 'obtaining intelligence vital to the protection of untold thousands of American citizens,' normal strictures on torture might not apply. The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued. Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the 'necessity' of using such methods to extract information to head off an attack, or 'superior orders,' sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no 'moral choice was in fact possible.'"

"A Pentagon official said some military lawyers involved objected to some of the proposed interrogation methods as 'different than what our people had been trained to do under the Geneva Conventions,' but those lawyers ultimately signed on to the final report in April 2003, shortly after the war in Iraq began. The Journal hasn't seen the full final report, but people familiar with it say there were few substantial changes in legal analysis between the draft and final versions."

"A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture -- to assert 'presidential power at its absolute apex,' the lawyer said. Although career military lawyers were uncomfortable with that conclusion, the military lawyer said they focused their efforts on reining in the more extreme interrogation methods, rather than challenging the constitutional powers that administration lawyers were saying President Bush could claim."

Geraldine Sealey

Geraldine Sealey is senior news editor at Salon.com.

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