The Bybee memo: This is no episode of ’24’
The Review-Journal headline in the paper read: “Interrogation memos called ‘flawed,’ not misconduct.”
The New York Times headline said, “Report Faults 2 Who Wrote Terror Memos.”
The Los Angeles Times headline offered, “Torture memos draw no sanctions.”
It’s all a matter of how you look at it. On Monday morning the quarterbacking is easier.
The Justice Department’s Office of Professional Responsibility memo on the memos written by Jay Bybee and John Yoo, advising the Bush administration on what it could get away with in “enhanced” interrogation, called the memos flawed and repeatedly said the two failed to follow precedence.
Bybee is a former UNLV law professor and now a federal judge in Nevada.
The OPR memo addresses once again that classic conundrum: What was the Founders’ intent?
Here is a bit of that memo: “The Bybee Memo cited no authority to suggest that the drafters of the Constitution (or anyone else) believed or intended that the President's Commander-in-Chief powers would include the power to torture prisoners during times of war to obtain information. Thus, the Bybee Memo's conclusion that the torture statute ‘does not apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority’ was wrong and most certainly did not constitute thorough, objective, and candid legal advice.”
I did not see a citation in the memo telling us that the drafters believed or intended otherwise either.
In Part V of one of his memos, Bybee wrote, “Even if an interrogation method arguably were to violate Section 2340A (of the U.S. Code making it a crime to torture), the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign. As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply Section 2340A in a manner that interferes with the President’s direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.”
Article II, Section 2 of the Constitution: “The President shall be Commander in Chief of the Army and Navy of the United States …”
Once again we turn to our friend Seth Lipsky and his book “The Citizen’s Constitution.”
Lipsky tells us President Lincoln cited this authority when he issued the Emancipation Proclamation freeing the slaves in the South but not the border states still loyal to the Union.
Lincoln wrote to James Conkling in 1863: “I think the constitution invests its Commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there — has there ever been — any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy? Armies, the world over, destroy enemie's property when they can not use it; and even destroy their own to keep it from the enemy. Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel. Among the exceptions are the massacre of vanquished foes, and non-combatants, male and female.”
But what is constitutional and what is right might not always be the same thing. As various lawyers have advised me over the years about their advise: I told you it was legal, I did not say it was right.
So maybe we should look deeper than precedents and constitutionally and the intent of the Founders. George Washington did order his troops to not run prisoners through a gantlet even though the British and Hessians had been know to bayonet American prisoners.
"Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren who have fallen into their hands,” Washington wrote.
A former Las Vegas lawyer, Vietnam veteran and now federal judge in New York, Evan Wallach, wrote a paper two years ago specifically critical of the Bybee and Yoo memos because of his concern for how our own troops might be treated by enemies in the future.
Wallach wrote: “Those who sow the wind should not be surprised at what they reap. The Third Geneva Convention was written in the light of the still glowing embers of Nazi death camps. Millions of POWs, largely Russians, Poles, and Serbs had perished because of their race, religion and ethnicity. They had been subjected to that regime despite the strictures of the 1929 Geneva Convention …
“At war’s end the world resolved to do better. The Third 1949 Geneva Convention was the child of that resolution. Its presumptions and protections are not mere words, they are not charming relics of a bygone era, and they are not obsolete. We disregard their strictures not merely at our peril, both legal and moral, but more importantly at the peril of our soldiers, sailors, air personnel and marines in service and yet unborn. …
“Who sets such precedents bears a heavy responsibility to remember that when we gaze into the abyss, the abyss gazes back into us.”
This is not another episode of "24" with Jack Bauer torturing or being tortured to extract vital information. This is the real world, and, frankly, this might be the one time when my ethics are, well, a bit situational.
