Whether giving advice to corporate executives or senior government officials, lawyers often walk a fine line between counseling their clients on how to follow the law to avoid prosecution and how to break the law in such a way as to frustrate and impede prosecution. Good lawyers know they can usually make any advice seem like the former, through the judicious inclusion of a few caveats, hypotheticals, and assumptions.
However, no amount of caveating can save the latest Defense Department memorandum on the legality of torture (first reported by the Wall Street Journal) from being construed as what it is: a cookbook on how to conduct illegal torture and get away with it. The memo discusses ways to deprive federal courts of jurisdiction over Guantanamo Bay, lays out ways for government employees to avoid culpability under federal law, and explains why the president can unilaterally nullify the federal war-crimes statute, among other things. In case that's not enough, it also recommends that spooks and interrogators get written orders from the president, so they can offer a Nuremberg-style "superior orders" defense if prosecuted.
In any criminal or civil case, courts must start with the question of whether they have jurisdiction to hear the case in the first instance. Appropriately enough, the memo explains how to avoid the exercise of American jurisdiction over Guantanamo Bay. Notably, the memo concludes that the federal anti-torture statutedoesnot apply to American personnel at Guantanamo Bay because that base is within the "special maritime and territorial jurisdiction" of the United States—while the torture statute's text limits its application to locations "outside of the United States." The fact that the offenses happen on U.S. military property means they're outside the reach of U.S. criminal law. This is hairsplitting with the precision of an electron microscope, but it produces the desired result for the Pentagon: America's anti-torture statute does not apply to the place where we are holding detainees in the war on terrorism.
Anyone who's been paying attention to this year's Supreme Court docket will find this conclusion extremely ironic. The Pentagon lawyers argue in the memo that Guantanamo Bay is within the United States' "special maritime and territorial jurisdiction" for offenses committed by our soldiers, but in the Supreme Court cases they contend that it is not within the federal courts' jurisdiction for purposes of a lawsuit by Gitmo detainees. There is a rule (laid out in the 1950 case Johnson v. Eisentrager) regarding "enemy aliens" and their access to U.S. courts when they are not on U.S. soil. However, that distinction evaporates when these aliens are being held somewhere within U.S. jurisdiction, as the Defense Department concedes in this memo. It would be a gross understatement to say that this Pentagon memo contradicts the U.S. government position as argued by the solicitor general's office in the Guantanamo case now before the Supreme Court. The two positions are in fact irreconcilable.
The memo goes on. Another recommended technique for keeping DoD personnel out of jail concerns the intent that must be proved in a torture prosecution. Here, the memo gets really Kafka-esque. "A defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control." It's not enough, in other words, for severe pain or suffering to accidentally result from torture. According to this tortured (sorry!) interpretation, only a real professional (picture the Marquis de Sade of Gitmo) can in fact be guilty of torture since only such an expert would have the requisite knowledge of torture's effects, such as the causal relationship between sleep deprivation and post-traumatic stress disorder. Amateur practitioners, such as the reserve military police soldiers who currently staff Gitmo, wouldn't likely be guilty under this statutory interpretation, because they're not expert enough on how to punish the mind and body.
Much of the memo focuses on the federal anti-torture statute, because presumably that statute is applicable to American activities at Gitmo. But the Pentagon's lawyers also take their best shot at the federal war-crimes statute, too, perhaps the next-biggest legal threat for U.S. officials who might use torture to pump detainees for information. In a wonderful example of circularity, the lawyers state: "The Department of Justice has opined that [the federal war-crimes statute] does not apply to conduct toward al-Qaida or Taliban operatives because the president has determined that they are not entitled to the protections of Geneva and the Hague Regulations." It's never a good sign when lawyers refer to other lawyers' opinions (as opposed to laws or court decisions) as authority for a legal argument. Here, the reason for this self-referential passage is obvious: No court or legislature has said the president has the power to unilaterally nullify a signed treaty and a federal statute. This argument can be bolstered only with legal memoranda from other executive branch attorneys who have drunk the Kool-Aid.
Where the laws have spoken, they have generally said the president indeed lacks the legislative power to nullify a statute in this way. Article II, Section 3 of the Constitution grants the president the power to "recommend … such Measures as he shall judge necessary and expedient," but this only confers the power to send legislation to Congress, like the annual budget. It does not, as president Truman found out in the famous Korean War case Youngstown Sheet & Tube Co. v. Sawyer, allow the president to unilaterally change or simply ignore the law. Similarly, the president cannot unilaterally set aside the Geneva Conventions. Once ratified by the Senate, such treaties become the law of the land. The president can no more set binding international agreements aside than he can set aside the federal open-meetings act or murder statutes.
To pre-empt this criticism, the Pentagon's lawyers point to the executive power of the president to act both as commander in chief of the military and as chief prosecutor. The memo contends that the sole discretion to prosecute wars and prosecute criminals lies with the president, and if the president wants to set aside laws (like the torture and war-crimes statute), he can do so by declining to prosecute them. On Page 24, the draft memo states:
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. … Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategy or tactical decisions on the battlefield.
It is true that the president enjoys primacy in the area of foreign affairs. But where criminal conduct and foreign policy intersect, the Constitution gives the other two branches a say too. Most obviously, Article I of the Constitution gives Congress the power to "make Rules for the Government and Regulation of the land and naval Forces" and to "define … Offences against the Law of Nations." And according to the seminal case Marbury v. Madison, "It is emphatically the province and duty of the judicial department to say what the law is"—not the duty of Pentagon or Justice Department lawyers.
Of course, it's not the lawyers we should be worried about. The lawyers who drafted this memo face little risk of prosecution, and they're not the ones in harm's way. We ought to be concerned about the soldiers and spooks charged with executing these missions, though, especially when they're asked to act on the basis of such shoddy legal advice. The Bush administration has created an atmosphere of legal ambiguity where the laws of armed conflict are concerned. This laissez faire attitude toward the law of war has filtered down to the lowest levels of command, where tactical decisions about taking detainees and targeting artillery are conducted. Before the events of 9/11 and America's global war on terrorism, soldiers and spooks had at least a few bright-line rules: Never target civilians; never beat prisoners; never violate the Geneva Conventions. Those rules have now been blurred by bad legal advice from the top lawyers of the Bush administration, with predictable results. Case in point: American soldiers training on how to beat recalcitrant al-Qaida detainees learned their craft so well, they put one of their own brethren, an American soldier, out of the service with permanent brain damage. The great moral hazard of bad legal advice is not that it will corrupt the lawyers offering it, but that it will engender criminal behavior by those who follow it in the belief that their lawyers are right.
"Law" and "war" may seem like the ultimate oxymoronic pairing, but until now, the United States has led the world in trying to harmonize the two. Until recently, American soldiers and diplomats could rightly claim that no other nation integrated the law into its conduct of war more than we do. Today, America's ambassadors abroad can no longer make that statement. That, in turn, undermines our ability to force other nations to adhere to international law, since we no longer lead by example. More practically, our soldiers used to take comfort in the principle of reciprocity where the laws of war are concerned; now they have to worry about reciprocity from our enemies. We must return to the old bright-line rules which used to govern our conduct in war, both because it's the right thing to do and because it's in our interest to do so.
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