an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Rice: Bush Ordered It, And Therefore It Isn't Torture
Former Secretary of State Condoleezza Rice defending the U.S. interrogation policy at a Stanford dormitory. (Hat Tip: FP Passport)
In this excerpt, she seems to suggest that (1) President Bush directly ordered enhanced interrogation practices, (2) that she did not authorize these practices, but merely conveyed the authorization to others, and finally, (3) that because the President authorized them, these practices did not violate the Convention Against Torture. Rice did not, however, explain why they did not violate the Anti-Torture Statute or the War Crimes Act, both passed by Congress.
Several people have noticed the eerie resemblance of these remarks to Richard Nixon's statement to David Frost that "when the President does it, that means that it is not illegal." It's worth noting, however, that Rice says nothing about domestic law. (Unless, of course, she is suggesting that if techniques do not violate the Convention Against Torture, they cannot violate domestic law.)
Moreover, by trying to excuse herself on the ground that she was only following Bush's authorization, she is implicitly suggesting that the responsibility for torture (which, she insists, could not occur "by definition"), must rest with the President himself.
Here are some of the key excerpts:
How are we supposed to continue promoting America as this guiding light of democracy and how are we supposed to win hearts and minds in the world as long as we continue with these actions?
Well, first of all, you do what's right. That's the most important thing -- that you make a judgment of what's right. And in terms of enhanced interrogation, and rendition, and all the issues around the detainees. Abu Ghraib is, and everyone said, Abu Ghraib was not policy. Abu Ghraib was wrong and nobody would argue with...
Except that information that's come out since then speaks against that.
No, no, no -- the information that's come out since then continues to say that Abu Ghraib was wrong. Abu Ghraib was. But in terms of the enhanced interrogation and so forth, anything that was legal and was going to make this country safer, the president wanted to do. Nothing that was illegal. And nothing that was going to make the country less safe.
And I'll tell you something. Unless you were there in a position of responsibility after September 11th, you cannot possibly imagine the dilemmas that you faced in trying to protect Americans. And I know a lot of people are second-guessing now, but let me tell you what the second-guessing that would really have hurt me -- if the second-guessing had been about 3,000 more Americans dying because we didn't do everything we could to protect them.
If you were there in a position of authority, and watched Americans jump out of 80-story buildings because these murderous tyrants went after innocent people, then you were determined to do anything that you could that was legal to prevent that from happening again. And so I think people do understand that.
Now, as to Saudi Arabia and Kuwait and so forth -- I agree with you. We have tried to use the trafficking in persons and all of those measures, human rights reports and so forth, to put a spotlight on the kinds of problems that you have in places like Saudi Arabia or Kuwait or Oman or other places. But you can't -- you don't have the luxury in foreign policy of saying, alright, I won't deal with that country because I don't like its human rights record. You don't have that luxury. So if you need Saudi Arabia to fight al Qaeda internally -- which is by the way where al Qaeda came from -- or if you need Saudi Arabia to be part of a coalition that's going to help bring a Palestinian state, you can't decide not to deal with Saudi Arabia because of its problems with human rights. Or, if you need to make sure that the Gulf is safe from Iranian influence -- you want to talk about human rights abusers? -- Iran.
. . . .
So, foreign policy is full of tough choices. Very tough choices. The world is not a bunch of easy choices in which you get to make ones that always feel good.
Even in World War II, as we faced Nazi Germany -- probably the greatest threat that America has ever faced -- even then...
With all due respect, Nazi Germany never attacked the homeland of the United States.
No, but they bombed our allies...
No. Just a second. Three thousand Americans died in the Twin Towers and the Pentagon.
500,000 died in World War II, and yet we did not torture the prisoners of war.
And we didn't torture anybody here either. Alright?
We tortured them in Guantanamo Bay.
No, no dear, you're wrong. Alright. You're wrong. We did not torture anyone. And Guantanamo Bay, by the way, was considered a model "medium security prison" by representatives of the Organization of Security and Cooperation in Europe who went there to see it. Did you know that?
. . . .
I read a recent report, recently, that said that you did a memo, you were the one who authorized torture to the -- I'm sorry, not torture, waterboarding. Is waterboarding torture?
The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against torture. So that's -- and by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency. That they had policy authorization subject to the Justice Department's clearance. That's what I did.
Okay. Is waterboarding torture?
I just said -- the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture.
UPDATE: John Barrett notes that we can read Rice more charitably as simply deferring to the lawyers at the Justice Department:
I think your post on Condoleeza Rice's remarks at Stanford is based on a misreading of her remarks (which admittedly are a little hard to parse, but of course they were impromptu). She did not make the Nixon-to-Frost claim that presidential command means legality. Instead, she made these points: 1. President Bush instructed everyone in the administration to obey all of our legal obligations. 2. The Justice Dept. lawyers authorized the proposed interrogation program, telling us it was not "torture." 3. Based on that legal advice, the President authorized the program. 4. All I did was communicate that presidential authorization, of what DOJ said was legal, to the CIA.
In other words, it was, she is saying, the lawyers' fault, not the President's or mine.