There is much talk about whether the attorney general or Secretary Rumsfeld or maybe even the president gave the signal to torture detainees of the present war. Much of this talk is centered on a March 6, 2003, Pentagon working-group memorandum and an August 2002 Justice memo that have now to one degree or another been made public. The talk is overheated. It suggests that these scholarly but highly speculative background considerations somehow signaled to enlisted personnel on duty that night at Abu Ghraib that it was okay to engage in abusive behavior.
But the memoranda do no such thing. Instead, they accurately explore the maximum scope of presidential power during war, provided the presidential decisions being analyzed are necessitated by grave and unforeseen emergencies and the specific tactical responses necessary to meet them.
There is nothing in the memoranda to suggest that torture–as international and domestic law defines it–was recommended, or that the president or any other high-ranking or even mid-rank officer approved of cruel and abusive behavior. Quite the contrary: While examining the extent of presidential authority in the worst-case scenarios of wartime, the authors affirm that “malicious and sadistic use of force always violates contemporary standards of decency and would constitute cruel and unusual punishment.” Moreover, the memos further reflect that soldiers would not have any defense against such unlawful orders. The applicable punishments of the Uniform Code of Military Justice (UCMJ) are set out in some detail.
No one reading these documents in full could deduce that the president or any of his subordinate military commanders were authorizing the type of behavior that occurred at Abu Ghraib. Of course, as the military trials of the seven or so soldiers accused of involvement goes forward, it will be a question of judgment whether their conduct in some or all of the cases rose to the level of torture. Unless the press has yet to report something significant, in most cases, torture was not involved.
As the DOJ and DOD memos set out in great detail, the definition of torture under applicable international and domestic law is quite precise. It involves specifically intended infliction of severe physical or mental pain or suffering. Posing detainees in sexually stupid or compromising positions is ugly, but it cannot possibly be argued to be the equivalent of “prolonged mental harm resulting from the intentional infliction or threatened infliction of severe physical pain or suffering or…threat of imminent death,” as set out in the anti-torture statute in the U.S. Code. As I have written, the behavior at Abu Ghraib is inexcusable and may say more about our culture than we are willing to admit. It is also punishable, not as torture, but most likely as either an assault or cruelty, oppression or maltreatment in violation of Article 93 of the UCMJ.
Was it wise or prudent for the Justice and Defense Departments to contemplate the ultimate scope of the president’s military powers? Yes. Otherwise, hesitation in the face of grave emergency might defeat capability. Of course, emphasis must be placed upon the qualifier of the contemplated power–a grave and extreme emergency–and admittedly, that could have been made more explicit in the drafting so that others coming to these documents later would not misconstrue the discussion as placing the president above the law. In remarks following the G8 summit, the president reaffirmed his commitment to the lawful and humane treatment of wartime detainees and personally restated his commitment to “take Care that the Laws be faithfully executed.”
The “Laws” referred to in section 3, Article II of the Constitution include the Constitution itself, as these exploratory memos declare. It is an unexceptional canon of construction that treaty obligations and statutes are to be construed consistently with our foundational written charter. It may distress the president’s adversaries–especially the enemy combatants and purveyors of terror worldwide–that the Supreme Court has faithfully held that “the President alone…is constitutionally invested with the entire charge of hostile operations” (Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874)), but that is settled.
As leaked, the memos that have caused such a stir in the media and before the Senate Judiciary Committee were in draft form. Perhaps in their final versions, the language was polished and the context of grave and imminent emergency more obvious. But two things are true: First, whoever leaked these confidential memoranda did the Constitution, his president, and his country a serious disservice. Apart from what these background ruminations may or may not imply about the hypothetical need for extraordinary interrogation methods, they should have been intended as internal deliberative documents for the White House counsel or attorney general alone–for the purpose of giving more definitive, succinct, and intellectually accessible advice to the president. Documents of this length, qualification, and legal nuance are for lawyers, not the president or other cabinet members. They are certainly not to be floated about to ad hoc working groups or task forces. Portions of the drafts appear to have been classified at one time–properly so. But even absent top-secret status or higher, they should have been kept confidential within the ambit of the president’s executive privilege. Having failed to observe this, the next time hard questions are addressed, the proffered answers will likely be hedged for anticipated public consumption. That will serve no one well.
Second, and more fundamentally, the scope of power being contemplated for the president is rare (appropriately so), but not without historical root. Lincoln supposed he had such authority when he confronted the imminent threat of the dissolution of the union. Lincoln acted to suspend the writ of habeas corpus (a matter resolved ultimately against him, but only after the Civil War) and relied on inherent executive power for the Emancipation Proclamation that freed the slaves in the confederate states–contrary to other constitutional provisions and a bevy of laws. As with his blockade of southern ports, affirmed by the Supreme Court as a tactical decision wholly within his discretion in The Prize Cases, Lincoln acted in these matters “as commander in chief of the army and navy.”
The imminent and grave threats upon which the Justice and Defense Department memos are premised are not happy considerations. No one wants to contemplate the ruthless devastation of fundamentalist terror. Yet we all want our nation of laws to withstand it. As Lincoln asked, “are all laws but one to go unexecuted and the government itself go to pieces lest the one be violated?”
The lawyers in the Justice Department were asking the very same question put plaintively by the sixteenth president. It was a question necessary for Lincoln to ask, and we must ask it too if we want to forestall a repetition of 9/11, or worse.
–Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He is a former constitutional legal counsel to Presidents Reagan and George H. W. Bush.