If there was ever any doubt, it is now clear that the torture at Abu Ghraib cannot be dismissed as the actions of a few bad actors. Two leaked memorandums, one to White House counsel Alberto Gonzales from the head of the Justice Department’s Office of Legal Counsel and the other to Defense Secretary Donald Rumsfeld from a Working Group on Detainee Interrogations in the Global War on Terrorism, make crystal clear that this Administration consciously sought out every loophole it could find to justify inflicting physical and psychological pain on captives for the purpose of obtaining intelligence. The memos are the “smoking guns” of the Abu Ghraib scandal. The fact that they were advanced by the two executive branch entities now in charge of the torture investigations makes clear that a special prosecutor is needed.
The memos reveal an Administration that took upon itself the power to define the law. In the considered views of these memos, the President of the United States is not bound by any law when he is acting as Commander in Chief. Indeed, the memos argue, it would be unconstitutional for Congress, or international law, to seek to constrain the President’s prerogatives, even on a matter as universally prohibited and morally repugnant as torture.
The Office of Legal Counsel is often referred to as the “conscience” of the executive branch. But if this is the executive branch’s conscience, we have grave problems. The office’s August 2002 memo to Gonzales provides the framework for the Working Group report to Rumsfeld that followed in March 2003. Both memos read like a tax lawyer’s advice on loopholes. The criminal ban on torture requires “specific intent,” so if the interrogator knows that his actions will inflict severe harm, but he doesn’t “specifically intend” them to do so, he’s off the hook. Threats of death are permissible if they are not threats of “imminent death.” Drugs designed to disrupt a suspect’s personality may be administered if they do not “penetrate to the core of an individual’s ability to perceive the world around him.” Mental harm is fine if it’s not “prolonged.” Pain is acceptable if it’s less than the pain that accompanies “serious physical injury, such as organ failure.”
If an interrogator fails to follow this road map and commits what–even in the Bush Administration’s eyes–is torture, the memos go on to offer a series of defenses. The interrogator can claim torture was a “necessity,” that he was torturing “in self-defense” or that he was following “superior orders.” All of this, of course, is directly contrary to established federal and international law, which holds that under no circumstances is torture “justified” or “excused.” But even these loopholes aren’t really necessary, because at bottom, the memos maintain, the President is simply not bound by law in interrogations connected to combating terrorism. Indeed, were Congress to try to regulate interrogation, it would “violate the Constitution’s sole vesting of the Commander-in-Chief authority of the President.”
At a June 10 news conference, George W. Bush said he instructed US troops to adhere to the law, and “that ought to comfort you.” But he refused to say whether he understood that the law bans torture. And he says he “can’t remember” whether he read the memos that argue “the law” doesn’t bind him as Commander in Chief. That’s not the kind of memo you read and “can’t remember.” His Administration meanwhile has come up with yet another defense–blame it on the little guy; protect higher-ups. That one doesn’t appear in the memos, as perhaps it goes without saying.
The significance of these memos goes far beyond torture, to the very core of our system of checks and balances. Kim Scheppele, a University of Pennsylvania law professor, argues that the Bush Administration has turned Abraham Lincoln on his head. In defending his suspension of the writ of habeas corpus during the Civil War, Lincoln asked, are “all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” As Scheppele puts it, it seems the Administration’s attitude is that all the Constitution’s clauses but one–the Commander in Chief clause–are irrelevant. That view is perilously close to totalitarianism, and calls for more than a special prosecutor: Voters must remove those responsible for this assault on democracy.