Art of the Spanish Inquisition, Part 2

The Bush Administration has provided the legal machine that allows a CIA interrogator to practice the craft of a Spanish Inquisitor. The behind the scenes legal maneuvering by the White House employed the same tools that repair and tune the engine of democracy: Congressional acts, legal guidance from the Justice Department and the power of the Presidency. These tools demonstrate the hand-in-hand cooperation between the White House and the Executive and Congressional branches of Government. It is this cooperation and the conduct of torturous “enhanced interrogations” that deserves our attention.

The Bush Administration’s strategy behind this maneuvering consists of five prongs. First and foremost, get the required legal foundation to allow torturous interrogations. Without a legal foundation, the Executive branch risks running afoul of the Constitution. Second, conduct the interrogations in secret, outside the jurisdiction of the federal court system, in countries that are not squeamish about torture. Third, detain prisoners for an indefinite amount of time. (Withhold the Constitutional guarantee of the writ of habeas corpus, denying the detainee the opportunity to challenge the validity of the charges held against him and the appropriateness of the detainment.) Fourth, have complete control over the judicial proceedings to allow for quick convictions that support a political agenda. And fifth, do not allow the free press access to detainees.

President Bush derives his power to direct torturous enhanced interrogations from Article 2 of the Constitution, augment by two interpretations of Article 2 that argue for expansive presidential powers. Article 2, Section 1, known as the “Vesting Clause”, states: “The executive power shall be vested in President of the United States. Section 2 states: “The President shall be Commander in Chief of the Army and Navy of the United States…He shall have Power, by and with the Advice and Consent of the Senate to make Treaties…” Article 2 is simple, elegant, but hauntingly vague. Woefully absent is the definition of Executive Power and an illustrative or exhaustive enumeration of presidential powers. This lack of specificity provides fertile ground for the growth of arguments that attempt to define the reach of presidential power. The Bush Administration subscribes to two such complimentary arguments that promote expansive presidential powers, the “Vesting Clause Thesis” and the “Unitary Executive Theory”.

The Vesting Clause thesis claims that the “Vesting Clause” implicitly grants the President an array of residual powers not specified in Article 2. The notion is that the founding fathers intended the Constitution to reflect a conception of what is “naturally” and “essentially” within executive power.[1] Accordingly, Article 2 grants the President all powers that are in their nature executive and all powers not explicitly delegated to the other two branches. Further, it endows the President to be the sole organ for the United States in matters of foreign policy; it allows the President to withdraw from treaties without Congressional consent and it empowers the President, as Command in Chief, to commit U.S. troops without Congressional advice or consent.

The unitary executive theory speaks to the structure and governance of the Executive branch. It postulates that the Constitution creates a “hierarchical, unified executive department under the direct control of the President.”[2] In other words, the president is vested with the singular power of decision making for the entire Executive Branch. President Bush pledged his allegiance to this theory when he stated: “I am the Decider and I will decide what is best” to fend off Congressional pressure to dismiss Secretary of Defense Donald Rumsfeld.

Together these arguments push the Constitutional envelope, expanding the President’s foreign policy powers and the President’s control over the Executive branch. However since both the unitary executive theory and the vesting clause thesis are interpretations of executive power, not explicitly mentioned in the Constitution, legal underpinnings must be put in place to implement them.

Enter the Office of Legal Counsel (OLC), directly under the U.S. Attorney General. The OLC is the sanctioned oracle that interrupts the U.S. Constitution for the Judicial and Executive branches of government. The strength of the OLC opinions, rendered in memorandum, cannot be understated. Only the President and the Attorney General can override an OLC opinion. If the President requests an OLC opinion and acts accordingly he is acting under good faith, constitutionally speaking, avoiding the wrath of Congress and the Judiciary.

In 2001, the key OLC lawyers were Jay Bybee, Assistant Attorney General and John C. Yoo, Deputy Assistant Attorney General. Their views on presidential power and the conduct of the war on terror mirror the Bush Administration’s making them the White House’s go-to men. Yoo and Bybee played a key role in engineering the legal justifications, which resulted in a tacit endorsement by the OLC, for implementing the unitary executive theory and vesting clause thesis. The September 25 OLC memorandum[3] , signed by John Yoo, concludes that the President has the plenary constitutional power to direct military action against any organization that represents a threat to the security of the United States. Further, neither the War Powers Resolution[4] nor the Iraq Joint Resolution[5] “can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response. These decisions, under our Constitution, are for the President alone to make.” The Vesting Clause Thesis has taken form.

Fundamentally the September 25 OLC Memorandum pours the legal footing to support the foundation of a radically new detainee treatment and interrogation policy that incorporates torture. This dramatic shift, labeled the “New Paradigm”, was opined in a January 2002 memorandum to President Bush by Alberto Gonzales, White House Counsel. The New Paradigm places a high premium on “the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.” [6] The New Paradigm reflected the fear Americans felt the morning after 9/11; the fear that, as Daniel Marcus, General Counsel for the 9-11 Commission, put it, “September 11 was only installment number one.” [7]

The crucial first prong of the Administration’s strategy is put in place by August 2002. The OLC, under the leadership of Jay Bybee issued a series of four memorandums to Alberto Gonzales at the request of the White House.[8][9][10][11] These memorandums relieved the Executive Branch from detainee treatment obligations, for both al Qaeda and Taliban operatives, under the 3rd Geneva Convention, Common Article Three of the Geneva Convention and the United Nations Convention Against Torture. In effect, these memorandums allow President Bush to withdraw the United States from international treaties without the consent of the Congress; the Vesting Clause Thesis is energized. Further these memorandums insulated the Executive branch from Federal Law 18 USC Section 2441 (War Crimes Act) and Sections 2340 and 2340A concerning war crimes and torture. Taken as a whole, these memorandums lift virtually all international and federal legal barriers barring torture, clearing the way for “enhanced interrogations.”

Most notably, the August 1, 2002 memorandum signed by Jay Bybee defined torture such that the accompanying pain “must be of intensity akin to that which accompanies serious physical injury such as death or organ failure.” Further, “Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.” From this wording torturous interrogation techniques can be nuanced into the cruel, inhuman and degrading treatment category. This opened the flood gates for waterboarding. Daniel Marcus stated that obviously the August 1 memorandum was specifically “designed to legitimize waterboarding.”

The remaining four prongs of the strategy are implemented by conducting “extraordinary renditions” of suspected terrorists by the CIA.[12] This is the CIA practice of kidnapping suspected terrorists and taking them to secret “black sites” for interrogation in countries that are not squeamish about torture. The most common destinations are Egypt, Morocco, Syria and Jordan. The location and anonymity of these black sites allow the withholding of the writ of habeas corpus and right to legal representation. Judicial proceedings are conducted in secret military tribunals under control of Secretary of Defense. The CIA is able to hold detainees indefinitely, to conduct enhanced interrogations free from Judicial Branch meddling or exposure by the free press.

The August 2002 Memorandum remained in effect until June 2004 when the OLC withdrew it. The events that precipitates the unprecedented withdrawal is the departure of Jay Bybee to take a Federal appellate judgeship, the ousting of John C. Yoo by Attorney General Ashcroft and the appointment of Jack Goldsmith to head the OLC[13]. After Mr. Goldsmith takes office he reviews this memorandum, finds its logic deeply flawed and withdraws it at the cost of his position at the OLC[14]. The first prong is severely damaged, potentially exposing the Executive Branch to Judicial and Congressional oversight.

In June 2004 the Supreme Court hears three cases dealing with open-ended detainment, denial of legal representation, the right of habeas corpus and the use of military tribunals.[15] [16] [17] In all three cases the High Court ruled for the plaintiffs. The High Court restores the writ of habeas corpus to all detainees, affirms that persons cannot be held indefinitely and military tribunals must have Congressional approval.

Coming on the heels of the High Court’s decision the OLC renders the December 2004 Memorandum([18]) that supersedes the August 2002 memorandum in its entirety. The opening paragraph states: “Torture is abhorrent both to American law and values and to international norms.” The intent is to affirm the U.S. commitment to the United Nations Convention Against Torture[19] international agreement and to define the salient aspects of torture: “The critical issue is the degree of pain and suffering that the alleged torture intended to and actually did inflict upon the victim. The more intense, lasting or heinous the agony, the more likely it is to be torture.” The duration and repetition of torturous acts, as well as the degree of pain, suggests an illusive sliding scale. “Drawing distinctions among gradations of pain (for example, severe, mild, moderate, substantial, extreme, intense, excruciating, or agonizing) is obviously not an easy task, especially given the lack of any precise, objective scientific criteria for measuring pain.”

Taken together, the High Courts decisions, the withdrawal of the August 2002 memorandum and the issuance of the December 2004 memorandum bulldoze the legal foundation for enhanced interrogations. At this point the Bush Administration seems to have exhausted its judicial tactics. However with the resignation of Attorney General John Ashcroft and the appointment of Alberto Gonzales as Attorney General, their tactics evolved.

The OLC, under Alberto Gonzales, delivered a secret legal memorandum to the White House that is an expansive endorsement of the harshest interrogation techniques[20]; the opinion remains in effect, resurrecting the legal foundation for torture.

At the same time the President pursues a complementary legislative solution to secure the endorsement of Congress and nullify the High Court’s decision. From 2005 to the fall of 2006 the Republican controlled Congress, staring at a bold-faced Democratic take over, stumbles toward just such a solution by crafting three acts.

The first act, the “Department of Defense Appropriations Act, 2006” is enacted in December 2005. It contains language that attempts to prohibit the inhumane treatment of all prisoners and curb the ongoing detainee treatment excesses. President Bush signs the act into law and tethers a Presidential signing statement to it[21]. The wording of the statement is seen as an attempt by the President to exempt the Executive Branch from the sections of the act relating to detainee treatment. In a broader sense, the implication is the President is using signing statements as a line-item veto pen to scratch out sections of an act he does not agree with.

This has some Congressional members and the Constitutional law community throbbing like a hammered thumb. Senate Judiciary Committee Chairman Arlen Specter denounces President Bush’s use of signing statements as a “very blatant encroachment” on Congress’s constitutional ability to craft legislation.[22] The American Bar Association states that the issuances of presidential signing statements are contrary to the rule of law and our constitutional system of separation of powers.[23]

On the flip side, Professor Steven Calabresi, co-founder of the Federalist Society and member of Presidents Ronald Reagan and George H.W. Bush’s administrations, asserts that the legal footing for the issuance of signing statements lies in the unitary executive theory of presidential power. It follows that all agencies that exercise executive power can only do so by delegation from the President[24]. Further, signing statements serve to “publicize his [President’s] understanding of statutory and constitutional power” and to be a “directive to subordinates – source of guidance.” [25] However, both sides of the issue vehemently agree that a signing statement is not a get-out-of-jail card; the President must follow the law as written by Congress.

The second act, the National Defense Authorization Act for Fiscal Year 2006, is enacted in January 2006. This act contains the Graham-Levin and the McCain “Detainee Treatment Act of 2005” amendments. Taken together, these two amendments begin to construct a new legal footing for enhanced interrogations and provide hand-in-hand Congressional endorsement.

The Graham-Levin amendment contains two key provisions: The first provision denies the “application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba;” and the second prohibits the judicial review of “any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba.” This amendment nullifies the High Court’s decisions dealing with open-ended detainment and habeas corpus and prohibits the judicial review of the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien.

The McCain amendment states that torture is a violation of the Fifth, Eighth and Fourteenth Amendments to the Constitution. However, the amendment includes a trap door. It states: “No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.” Two very significant side effects occurred. First, the Army field manual is under Executive control allowing the Executive branch to rewrite the law by revising the manual without Congressional oversight. This constitutes an implicit Congressional delegation of authority to the Executive Branch to handle interrogations. And second, Daniel Marcus notes that the McCain amendment pertains to only detainees held by the Defense Department, not those held by the CIA; this lets the CIA off the hook allowing the practice of enhanced interrogations and the use of “black sites” to continue.

However, the requirement that interrogation techniques be codified only in the Army Field Manual, should not be dismissed as a simple political compromise. Codifying allows for review and review cracks the door open for oversight, even if the interrogation manual contains classified addendums.

The third act, the Military Commissions Act of 2006, is enacted in October 2006. This act completes the construction of the legal foundation for detainee treatment and enhanced interrogations. President Bush jubilantly states “Will it [the bill] allow the CIA program to Continue? This bill meets that test.”[26]

The act allows hearsay evidence, evidence obtained without a search warrant and testimony obtained under torturous or “contested” circumstances; it removes the Geneva Conventions as a source of defendant rights; the assertion of national security trumps introduction of relevant evidence and testimony; and specifies that the place of detainee confinement is under the control of the armed forces.

The act codifies military commissions to try the detainees, places the commissions under the control of the Department of Defense and strips federal courts of jurisdiction over pending as well as new cases. It labels detainees as “unlawful enemy combatants.” Once labeled the suspect is stripped of national origin, removed from federal judicial jurisdiction and placed under the Department of Defense, vaporizing due process, the 6th Amendment of the Constitution.

What is significant as well is what is absent. This act pertains to detainees under the control of the Defense Department only. The CIA is left unfettered by this act; as a result they can continue to handle detainees according to their own internal guidelines satisfying President Bush’s test.[27]

The Military Commissions Act of 2006 does not stand uncontested for long. In June of 2007, in a “déjà vu all over again moment”, the Supreme Court agreed to hear a habeas corpus appeal, Boumediene v. Bush.[28] The High Court is entertaining two questions: One, “Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay;” and two, “Whether Petitioners’ indefinite military imprisonment as ‘enemy combatants’ is unlawful, requiring the grant of habeas relief.”[29] This case collides head on with the Bush Administration’s strategy for detainee treatment. If the High Court determines that the detainees are once again entitled to the writ of habeas corpus and the Military Commissions Act of 2006 does not provide a reasonable substitute, it is likely the law will be repealed, demolishing the legal foundation for open ended detainment of prisoners and shining a light into the dank cellar of the enhance interrogation.

It is wholly appropriate to consider why we need to institutionalize torture. In all the wars previous to the Iraq / Afghanistan War tens of thousands of Americans died. Most of the American dead were civilian soldiers. Yet we, as a nation, resisted the temptation to legalize the practice of torture. However, the attack on the World Trade Center has bumped our moral compass. This attack, which occurred on our home turf that killed some 3,000 civilians, tapped an enormous well of fear, vengeance and racism towards the Muslim world. This toxic emotional brew prevents us from appreciating the number of Iraqi civilian deaths that have occurred since coalition forces arrived in Iraq in March 2003, estimated at somewhere around 150,000 to 650,000.[30] [31] And these emotions allow us to dehumanize the suspected terrorist and justify the use of torture. General Irvine, an expert in military prisoner interrogations, stated that we as a nation make the “assertion the Al Qaeda is a race of supermen; immune to tradition interrogation techniques” when in reality “[they] feel the same pain we do.” Further, General Irvine cautions “I don’t think we should take too much counsel from our fears.” Remember that it was fear, vengeance and racism that sustained the Spanish Inquisition.

Copyright Stephan Fowler 2007. All rights reserved.

[1] Curtis A. Gradley, Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs: A Critique of the Vesting Clause Thesis”, Fordham University School of Law, Fordham Law Faculty Colloquium Papers, 2003, paper 3
[2] “Jane Mayer, The Hidden Power,” The New Yorker, July 2006
[3] John C. Yoo, Deputy Assistant Attorney General, Memorandum Opinion for Timothy Flanigan, The Deputy Counsel to the President, September 25, 2001
[4] The War Powers Act of 1973, Public Law 93-148, 93rd Congress H.J.Res. 542, November 7, 1973
[5] Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq, The White House, Office of the Press Secretary, October 2, 2002
[6] “Jane Mayer, Outsourcing Torture”, The New Yorker, February 14, 2005
[7] Telephone interview with Daniel Marcus, Law Professor, American University College of Law, General Council National Commission On Terrorist Attacks Upon the United States (9-11 Commission), January 17, 2008
[8] Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales Counsel to the President, and William J. Haynes II General Counsel of the Department of Defense, RE: Application of Treaties and Laws to al Qaeda and Taliban Detainees, January 22, 2002
[9] Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales Counsel to the President, RE: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949, February 7, 2002
[10] Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzales Counsel to the President, RE: Standards of Conduct Under 18 U.S.C section 2340-2340A, August 1, 2002
[11] John C. Yoo, Deputy Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, The Honorable Alberto R. Gonzales Counsel to the President The White House Washington, D.C., August 1, 2002
[12] “Dana Priest, CIA Holds Terror Suspects in Secret Prisons”, Washington Post, November 2, 2005
[13] Front Line Documentary, “Cheney’s Law”
[14] “Jeffrey Rosen, Conscience of a Conservative,” The New York Times, September 9, 2007
[15] Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
[16] Rasul v. Bush, 542 U.S. 466 (2004)
[17] Hamdan v. Rumsfeld, 126 S. Ct.2749 (2006)
[18] Daniel Levin, Acting Assistant Attorney General Office of Legal Counsel, Legal Standards Applicable under 18 U.S.C. section 230-2340A
[19] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
[20] “Scott Shane, David Johnston, David Risen, Secret Endorsement of Severe Interrogations”, New York Times, October 7, 2007
[21] President Bush, Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006
[22] “Charlie Savage, Senators Renew Cal for Hearings on Sighing Statements”, Boston Globe, June 16, 2006
[23] Neal Sonnet et al., Task Force on Presidential Signing Statements and the Separation of Powers Doctrine (American Bar Association
[24] Steven B. Calabresi, Daniel Lev , The Legal Significance of Presidential Signing Statements
[25] Telephone interview with Professor Steven Calabresi, November, 20, 2007
[26] President George W. Bush, Remarks on Signing The Military Commissions Act 2006
[27] “Siobhan Gorman, CIA Chief Says Three Were Waterboarded”, The Wall Street Journal, February 6, 2008
[28] “Linda Greenhouse, For Justices, Another Day on Detainees,” The New York Times, December 3, 2007
[29] Lakhdar Boumedine, et al, v. George W. Bush, et al, Brief for the Boumedine Prisoners, Supreme Court of the United States
[30] “John Hechinger, WHO Study Puts Iraqis’ Death Toll at 151,000”, Wall Street Journal, January 10, 2008
[31] “David Brown, Study Claims Iraq’s ‘Excess’ Death Toll Has Reached 655,000”, Washington Post, October 11, 2006

Copyright Stephan Fowler 2007. All rights reserved.