Making explicit what was implicit

Today's Wall Street Journal has a remarkable article - remarkable, that is, in what it reveals about the thinking of the Shrubberies.

Unfortunately, it's only available online to subscribers to the print edition of the paper, but it has been posted in full here. (I'm a little unsure about putting up that link since I do believe in copyright laws, having been a producer of copyrighted material myself and having seen some of it appropriated without even acknowledgement - but since the truth is I'm not actually sure if the posting of the article is violating any copyrights or not, I decided to go ahead.) In any event, there is enough coverage elsewhere to get the full impact.

Simply put, the article reveals that

Bush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department.

The report was prepared in March 2003 for Donald Rumpled. Although the Journal says what it saw was a draft, "people familiar with it say there were few substantial changes in legal analysis between the draft and final versions."

[A]t its core is an exceptional argument that because nothing is more important than "obtaining intelligence vital to the protection of untold thousands of American citizens," normal strictures on torture might not apply.

The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued.

In a good analysis, Phillip Carter at IntelDump says the report crosses the line from advising how to stay within the law to how to avoid prosecution for breaking the law.

It is, quite literally, a cookbook approach for illegal government conduct. ... I have not seen the text of the memo, but from this report, it does not appear that it advises American personnel to comply with international or domestic law. It merely tells them how to avoid it. That is dangerous legal advice.

But the implications go well beyond evading punishment for illegal interrogations. The sweeping aside of law, tradition, the Constitution, and decency in pursuit of justifying a view of the president as a king rather than an elected official is breathtaking in its scope and audacity.

The working-group report elaborated the Bush administration's view that the president has virtually unlimited power to wage war as he sees fit, and neither Congress, the courts nor international law can interfere. It concluded that neither the president nor anyone following his instructions was bound by the federal Torture Statute....

"In order to respect the president's inherent constitutional authority to manage a military campaign ... (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority," the report asserted. ... Citing confidential Justice Department opinions drafted after Sept. 11, 2001, the report advised that the executive branch of the government had "sweeping" powers to act as it sees fit because "national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress."

Or, put more bluntly, "national security" not only trumps the law, it trumps democracy itself. Invoke "national security" and not only should all debate stop in search of "unity in purpose" but the law must stand aside as well.

Doubt it? Then consider this:

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."

That's right, they're arguing that presidents have the "inherent" power to simply suspend or ignore laws they don't like, much like Richard Nixon arguing that "when the president does it, it's not illegal." The president is above, beyond, unreachable by, the law.

As Josh Marshall said,

[t]hat claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around.

The Supreme Court is expected to rule soon on the cases of Jose Padilla and detainees at Gitmo to address the question of the president's authority to hold people as "enemy combatants" without recourse to the courts. We already knew there was a lot riding on those decisions - now it seems that there is even more riding on them than we knew.

Update: From Reuters comes news that the Washington Post reports on Tuesday that it has obtained an earlier memo, from August 2002, in which the Justice Department offered the White House justification for the use of torture against suspected al-Qaeda prisoners.

The memo said if a government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," the newspaper reported.

The memo also said that arguments centering on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later, according to the Post.

The similiarity of argument indicates to me that the DOJ memo was incorporated into the later document. Which means this wasn't a new thing last year, it was kicking around, under development you could say, for a time.

Oh, and in case you're wondering what brought this up, Reuters also notes that according the the Journal story, the Pentagon report,

compiled by military lawyers, came after commanders at Guantanamo Bay complained in late 2002 that they were not getting enough information from prisoners using conventional methods....

"We're Americans. We don't do that stuff. Well, of course, unless other ways don't work. Then we do. But it's okay if we do, because we're Americans and we don't do that stuff."

Second Update: The New York Times has also gotten hold of the March 2003 memo; its story contains some additional information beyond, and a wider context than, that in the Journal article.