Wednesday, June 09, 2004
In order to respect the President's inherent constitutional authority to manage a military campaign, 18 U.S.C. $ 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations durning a war. The President's power to detain and interrogate enemy combatants arises out of his constitutional authorities as Commander-in-Chief. A construction of Section 2340A that applied the provision to regulate the President's authority as Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions. Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude that it does not apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.
This logic is beyond strained. First of all, there is no war going on because Congress never declared one. This raises "serious constitutional questions" going the other way: it appears the president has usurped constitutional authority belonging to Congress. But even with a war on, it's an extreme interpretation to say that the conduct of the war is beyond any checks and balances at all.
The administration does backflips to justify its actions. Here, of course, there is a war on, so he's commander-in-chief, so what he says goes. But al-Qaeda soldiers aren't subject to the Geneva Convention, because that's signed between states and they aren't a state. The Dept. of Justice says that the Convention does apply in the conflict with the Taliban, except that it doesn't really, because Taliban detainees aren't really prisoners of war. There's no war on (see p. 3 of this memo). Also, this document, according to the WSJ (I haven't read the whole thing), says that the Guantanamo Bay facility is US territory. But elsewhere, the Bush administration says that the prisoners there don't have some rights specifically because GitMo isn't US territory.
Anyway, John Marshall points out the most important part of this memo:
MEMO: 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."