Arguments That Make You Ashamed to be a Lawyer

JB

I've been spending some time thinking about the legal claims made in the Pentagon's "torture memo." They sound like legal arguments, to be sure. But they are so mindlessly wrong-headed that you wonder how people can argue themselves into these conclusions.

The key argument in the memo stems from the fact that in order to implement our obligations under international conventions against torture, Congress passed a law making it criminal to engage in torture overseas. The memo then sets out to prove that this law does not bind the President. Why? Because all statutes should be construed to avoid constitutional difficulties. Preventing the President from using torture would pose a constitutional difficulty because it would impinge on his powers as Commander-in-Chief. As the memo puts it, "Congress may no more regulate the President's ability to detain and interrogate enemy combantants than it may regulate his ability to detect troop movements on the field." "Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." Taken to its logical conclusion, this argument would suggest that Congress may never place any restraints on anything that the President wishes do do under his powers as Commander-in-Chief because to do so might create a constitutional conflict with his powers as Commander-in-Chief. In short, the argument, taken to its logical conclusion, gives the President plenary power to do anything as long as he believes it is within his powers as Commander-in-Chief.

This is an assertion of power that would make Richard Nixon proud. (See the post below on Nixon's theory of presidential power.). Even the Iran Contra conspirators during the Reagan Administration did not make so strong a claim. They argued that the Boland Amendment, which prevented the expenditure of funds to the contras, did not apply to the activities of the National Security Council. Whether that argument was correct or not is besides the point. What is important is that they did not presume that Congressional legislation related to the conduct of war and foreign policy could not bind the President. The torture memo takes a much stronger position. It truly makes the President a King, someone who must be presumed to do no wrong. If the President adopted this position, and acted upon it, it would be grounds for impeachment.

The second argument is that people engaged in torture at the direction of the Executive may not be prosecuted for war crimes because they were following the orders of a superior. The memo recognizes that following orders is not a defense under both American and international law if the subordinate knows or has reason to know that the order is unlawful. After reciting various authorities to this effect, the memo then twists that legal formulation and concludes that "In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogiations except where the conduct goes so far as to be patently unlawful."

Note the switch. Instead of saying that the defense of following orders is generally unavailable, the defense is now described as generally permissible. And instead of a limited defense in cases where the subordinate did not know and did not have reason to know of the unlawful nature of the order, the defense becomes much broader. The act is generally privileged unless the illegality of the order is patent.

What difference does this formulation make? Put the first set of arguments about Presidential power together with the second. You are a subordinate asked to torture a subject. Do you know that this order is patently unlawful? No, you do not, because of the memo's first argument. The first argument claims that in order to avoid constitutional conflicts, all laws restricting the President's power to interrogate subjects should be construed not to apply to the President. Since the President is ordering you to torture someone, you may-- indeed, you must-- presume that this order does not violate any existing law when properly construed so as to avoid a constitutional conflict. Hence you can torture the suspect with a clear conscience.

Clearly it takes a highly trained legal mind to reach conclusions like these.

There is more in this memo worth discussing, but the import should by now be clear. The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration's dirtiest work-- apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.