I thought we had gotten past the idea that the President is above the law way back when Nixon imploded. Apparently not. A front-page article in today's Wall Street Journal (read it....the link should work for a few days) discusses an internal document produced by the Bush administration to justify the torture of prisoners at Guantanamo Bay and in Iraq.

You really need to read the whole article, but I'm going to excerpt a few paragraphs.

The report was prepared in 2003 for Donald Rumsfeld, apparently because commanders at Guantanamo felt they weren't getting enough information from prisoners. The report concluded:

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."

Of course, there have been rumors of mistreatment at Gitmo for a while. This evidently led at least one Senator to make an inquiry, to which he received a less-than-truthful response:

Following scattered reports last year of harsh interrogation techniques used by the U.S. overseas, Sen. Patrick Leahy, a Vermont Democrat, wrote to National Security Adviser Condoleezza Rice asking for clarification. The response came in June 2003 from Mr. Haynes, who wrote that the U.S. was obliged to conduct interrogations "consistent with" the 1994 international Convention Against Torture and the federal Torture Statute enacted to implement the convention outside the U.S.

The U.S. "does not permit, tolerate or condone any such torture by its employees under any circumstances," Mr. Haynes wrote. The U.S. also followed its legal duty, required by the torture convention, "to prevent other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture," he wrote.

Yet the report (the version the WSJ received dates from a few months before Haynes' letter) asserts otherwise:

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 other words, the President has the authority to ignore the law, the courts, Congress, and international treaties.

Whoa.

This, of course, begs the question of what actual limits there might be on the President's power. Apparently none, since the report goes so far as to describe various acts of torture which are illegal, and then claim that the President is free to ignore those restrictions as long as he sees the need:

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.

And what's more, the President has the inherent power to set aside the laws of the United States:

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."

Of course, now I'm dying to know if Bush ever actually issued such a Presidential Directive authorizing the use of torture. Talk about a smoking gun. Almost literally.

I find this un-freaking-believable. The Wall Street Journal is not exactly famous for its Bush-bashing, and this article is nothing short of explosive. We are, as the famous-quote-now-cliche says, a nation of laws and not men. That means that nobody is above the law: not the President, not Congress, not the Supreme Court, and not even Bill Gates.

But here we have an administration directly asserting in an internal legal opinion that the President has the power to set aside the laws of the country (important to keep in mind: just because the administration claims the power doesn't mean they actually used it). The particular laws the administration wants to set aside are the laws proscribing the use of torture. This is wrong in so many ways, I don't even know where to begin. But let's start with the 8th amendment to the Constitution which reads in whole:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

I don't see any qualifying language. Nothing which says, "except at the whim of the President." No "when we feel like it."

How about the UN convention on torture ? This is an international treaty which the U.S. signed and ratified, making it also the law of the land. It reads in part:

...torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Article 1)

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

An order from a superior officer or a public authority may not be invoked as a justification of torture. (Article 2)

The treaty goes on to require that countries which signed the treaty (which includes the U.S.) arrest anyone who has committed torture or is complicit in an act of torture. I'm not a lawyer, but I would presume that issuing an order allowing torture, or providing legal cover for someone else to issue such an order, qualifies as "complicity."

If Donald Rumsfeld approved the use of interrogation techniques which qualify as torture (as is suggested by the WSJ article), is John Ashcroft now legally obligated to arrest him and bring charges?

If the Presidential Directive suggested by the report was, in fact, issued, does that mean that John Ashcroft is legally obligated to arrest George W. Bush, too?

If Ashcroft is so obligated and he refuses, then who else should carry out the arrest as mandated by the torture convention? Is it then up to Congress to impeach the whole lot (presumably including Ashcroft himself, for refusing to abide by the part of the convention which requires him to arrest Rumsfeld and/or Bush)?

The legal implications of this are nothing short of staggering. It goes without saying that the Executive claiming it has the power to set aside the laws and the will of Congress and the Supreme Court is just asking for a constitutional crisis.

It also goes without saying that, if a Presidential Directive authorizing torture surfaces (and I'm not suggesting in any way that such a document exists), then Ashcroft is highly unlikely to arrest Bush and Rumsfeld. On the other hand, if such a document exists and comes to light, then even a Republican-controlled Congress would have a hard time not impeaching the President.

Update: Phil Carter also wrote about this article . He actually is a lawyer, unlike me.