THE TORTURE MEMO….The infamous John Yoo torture memo has finally been released, and it’s pretty remarkable. (Part 1; Part 2.) Basically, it says that criminal law doesn’t prohibit torture because it doesn’t apply to the military. Treaties don’t prohibit torture because they only apply to uniformed enemy soldiers. Ditto for the War Crimes Act. And federal statutes prohibiting torture don’t prohibit torture because they don’t apply to conduct on military bases.
We already pretty much knew that this was what the memo said. But Yoo doesn’t stop there. Not only do none of these things apply, but there’s no way to make them apply even if we wanted to:
Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President….Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.
And the Convention Against Torture? If the president orders someone to be tortured, that automatically suspends CAT:
Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions.
If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.
So that’s that. Basically, the president can authorize any action at all as commander-in-chief in wartime. Congress can’t bind him, treaties can’t bind him, and the courts can’t bind him. The scope of power the memos suggest is, almost literally, absolute. And since this is a war without end, the grant of power is also without end.
As we all know, this memo was eventually rescinded. So in a sense it’s moot. But Marty Lederman asks a good question: now that we know what was in the memo, what justification was there for classifying it in the first place? It wouldn’t have been moot in 2003, and there was nothing in it that compromised national security either then or now. The only thing it compromised was the president’s desire not to have to defend his own policies — policies that led directly to the abuses at Abu Ghraib, among others.