Tuesday, June 08, 2004

Princeps legibus solutus est

The Pentagon just keeps on leaking. The latest is classified legal advice to Donald Rumsfeld contending that

The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued. Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the "necessity" of using such methods to extract information to head off an attack, or "superior orders," sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no "moral choice was in fact possible."

What's striking is the degree to which this mirrors the Nazi "defence" for Crimes Against Humanity at Nuremberg. The Fuhrer gave the orders, and the generals had "no choice" but to implement them. The Nuremberg Tribunal took a very dim view of this argument. Out of 22 defendants using it, only 3 were acquitted; 12 were hanged. All the Nuremberg defence does is tell us who else should also be in the dock.

What's also striking is that it shows us exactly how far the US has sunk. The United States was originally conceived as "a government of laws, not men". Yet now they have government lawyers arguing that

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


authority to set aside the laws is "inherent in the president."

This strikes at the very core of freedom. If the President's Men can do whatever they like, with no laws applying, then no-one is safe. There's a reason why western democracies say that the rule of law is supreme and that not even the government is immune: because immunity encourages abuse. It makes us reliant on the goodwill of the powerful, and we have sufficient knowledge of humanity's flaws to know that that is simply not enough. While law cannot by itself prevent abuses (the US's quite clear laws against torture and Crimes Against Humanity did not prevent Abu Ghraib), it can discourage them, and at least allows punishment after the fact.

It also shows the vital importance of the Jose Padilla and Yaser Hamdi cases, currently before the US Supreme Court. The administration's arguments in those cases rely on the same doctrine of unfettered executive power, and now we know exactly where it leads. If the Supreme Court decides for the government in the Padilla/Hamdi case, then liberty will be dead in America.

(Interestingly, during the oral hearings one of the Justices asked whether that doctrine permitted torture; the administration's response was, essentially, "our government doesn't do that sort of thing". Two days later, the photos hit the papers...)