I will obey the laws of my choosing

A lot of bloggers, mostly the liberal side (I assume either I don't read the right conservative ones or they don't have much to say on it) have made comment on the Wall Street Journal story (note: this is not the WSJ link, but a free link to the full story. If this violates anything, please advise and I'll remove it) from yesterday, one of which I pointed out below.

To refresh, it states that a gaggle of lawyers thought up all sorts of creative ways to violate the Torture Statute and the Geneva Convention, amongst others. The report was commissioned because interrogators felt they could not get enough information without torture which they knew was illegal, so they had to find a way around it.

Here's the meat of the article:

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, which makes it a crime for Americans working for the government overseas to commit or attempt torture, defined as any act intended to "inflict severe physical or mental pain or suffering." Punishment is up to 20 years imprisonment, or a death sentence or life imprisonment if the victim dies.

"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. (The parenthetical comment is in the original document.) The Justice Department "concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president's constitutional power," the report said. 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."

The lawyers concluded that the Torture Statute applied to Afghanistan but not Guantanamo, because the latter lies within the "special maritime and territorial jurisdiction of the United States, and accordingly is within the United States" when applying a law that regulates only government conduct abroad.

Administration lawyers also concluded that the Alien Tort Claims Act, a 1789 statute that allows noncitizens to sue in U.S. courts for violations of international law, couldn't be invoked against the U.S. government unless it consents, and that the 1992 Torture Victims Protection Act allowed suits only against foreign officials for torture or "extrajudicial killing" and "does not apply to the conduct of U.S. agents acting under the color of law."

The Bush administration has argued before the Supreme Court that foreigners held at Guantanamo have no constitutional rights and can't challenge their detention in court. The Supreme Court is expected to rule on that question by month's end.

For Afghanistan and other foreign locations where the Torture Statute applies, the March 2003 report offers a narrow definition of torture and then lays out defenses that government officials could use should they be charged with committing torture, such as mistakenly relying in good faith on the advice of lawyers or experts that their actions were permissible. "Good faith may be a complete defense" to a torture charge, the report advised.

"The infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture," the report advises. Such suffering must be "severe," the lawyers advise, and they rely on a dictionary definition to suggest it "must be of such a high level of intensity that the pain is difficult for the subject to endure."

The law says torture can be caused by administering or threatening to administer "mind-altering substances or other procedures calculated to disrupt profoundly the sense of personality." The Bush lawyers advised, though, that it "does not preclude any and all use of drugs" and "disruption of the senses or personality alone is insufficient" to be illegal. For involuntarily administered drugs or other psychological methods, the "acts must penetrate to the core of an individual's ability to perceive the world around him," the lawyers found.

Gen. Hill said last week that the military didn't use injections or chemicals on prisoners.

After defining torture and other prohibited acts, the memo presents "legal doctrines ... that could render specific conduct, otherwise criminal, not unlawful." Foremost, the lawyers rely on the "commander-in-chief authority," concluding that "without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority" to wage war. Moreover, "any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the commander-in-chief authority in the president," the lawyers advised.

Likewise, the lawyers found that "constitutional principles" make it impossible to "punish officials for aiding the president in exercising his exclusive constitutional authorities" and neither Congress nor the courts could "require or implement the prosecution of such an individual."

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."

The report advised that government officials could argue that "necessity" justified the use of torture. "Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law," the lawyers wrote, citing a standard legal text, "Substantive Criminal Law" by Wayne LaFave and Austin W. Scott. "In particular, the necessity defense can justify the intentional killing of one person ... so long as the harm avoided is greater."

In addition, the report advised that torture or homicide could be justified as "self-defense," should an official "honestly believe" it was necessary to head off an imminent attack on the U.S. The self-defense doctrine generally has been asserted by individuals fending off assaults, and in 1890, the Supreme Court upheld a U.S. deputy marshal's right to shoot an assailant of Supreme Court Justice Stephen Field as involving both self-defense and defense of the nation. Citing Justice Department opinions, the report concluded that "if a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition," he could be justified "in doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network."

Mr. LaFave, a law professor at the University of Illinois, said he was unaware that the Pentagon used his textbook in preparing its legal analysis. He agreed, however, that in some cases necessity could be a defense to torture charges. "Here's a guy who knows with certainty where there's a bomb that will blow New York City to smithereens. Should we torture him? Seems to me that's an easy one," Mr. LaFave said. But he said necessity couldn't be a blanket justification for torturing prisoners because of a general fear that "the nation is in danger."

For members of the military, the report suggested that officials could escape torture convictions by arguing that they were following superior orders, since such orders "may be inferred to be lawful" and are "disobeyed at the peril of the subordinate." Examining the "superior orders" defense at the Nuremberg trials of Nazi war criminals, the Vietnam War prosecution of U.S. Army Lt. William Calley for the My Lai massacre and the current U.N. war-crimes tribunals for Rwanda and the former Yugoslavia, the report concluded it could be asserted by "U.S. armed forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful."

Basically, "because the president said so" is now a perfectly viable legal excuse. Or to kill someone and say he was protecting us from a terrorist attack. I look for these to come up in our court system soon enough.

So Ashcroft had a talk with Congress. And he basically told them to piss off.

U.S. Attorney General John Ashcroft, warned that he might be risking a contempt citation from Congress, told lawmakers he won't release or discuss memoranda that news reports say offered justification for torturing suspected terrorists.

Democratic members of the Senate Judiciary Committee asked Ashcroft about reports in the Wall Street Journal, the Washington Post and the New York Times that the Justice Department advised the White House in 2002 and 2003 that it might not be bound by U.S. and international laws prohibiting torture. Ashcroft said he wouldn't reveal advice he gave to President George W. Bush or discuss it with Congress.

The Judiciary Committee was not pleased.

Senator Joseph Biden, a Delaware Democrat, challenged Ashcroft to say whether he was invoking executive privilege in refusing to give Congress the Justice Department memos. Ashcroft said he wasn't invoking executive privilege.

``You might be in contempt of Congress, then,'' Biden replied. ``You have to have a reason. You better come up with a good rationale.''

Later, Senator Richard Durbin, an Illinois Democrat, said Ashcroft had to cite a federal statute to justify not sharing the requested information. Ashcroft replied that his refusal was ``protected by the doctrine of separation of powers in the Constitution.'' Durbin shot back, ``You are not citing a law.''

Senator Orrin Hatch, a Utah Republican and chairman of the committee, asked Ashcroft whether the memos in question are classified. After consulting with staff members, Ashcroft replied, ``Some of these memos might be classified in some ways, and for some purposes.''

Durbin called that answer ``an evasion.''

What surprised me is that Ashcroft did not try his own "I was ordered by the President" routine. He could say he was told by Bush to stonewall Congress, and because the president "has unlimited power to wage war as he sees fit," he was only pulling out his best Nazi defense.

It is sad the way things have began to fall out of the Bush Administration. These things, however seem typical when fanaticism takes favor over sound foreign policy. Again, sure, the world is better off without Saddam. But to ignore treaties which according to the Constitution become a law of the land for our own gain is horrifying. Imagine the President says it is in the best interest of the war to delay elections, or dissolve the court system all together. Then what? Who is left to protect us? How far must he go before people begin to see the light? Maybe that time has come. We shall see in November