SubscribeThe nub of it is that in March of 2003, on the eve of the Iraq invasion, Rumsfeld asked for, and received, a 100-page legal memorandum that specificially sought to establish a legal basis for use of what the Red Cross now calls "practices tantamount to torture":Oh dear. Josh Marshall has more.The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities. In a March 6, 2003, draft of the report reviewed by The Wall Street Journal, passages were deleted as was an attachment listing specific interrogation techniques and whether Mr. Rumsfeld himself or other officials must grant permission before they could be used. The complete draft document was classified "secret" by Mr. Rumsfeld and scheduled for declassification in 2013.It's not clear from the article what relationship this report - which was drafted by a team of military, intelligence agency and DOJ lawyers - bears to the various legal memos already uncovered by Newsweek. Perhaps it's the finished product, so to speak - a U.S. government licence to torture, with the legal i's dotted and the t's crossed. That, at least, is what the deleted attachment suggests.
The draft report ... deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawfull. But at its core is an exceptional argument that because nothing is more important than "obtaining intelligence vital to the protection of untold thousands of American citizens," normal strictures on torture might not apply.
There are many creepy things about the Journal's description of the report - things that leave me with the distinct impression the drafters could have graduated with honors from the University of Berlin's law school, circa 1942. For example:
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." (emphasis added.)Now I have to admit: The idea of using the Nuremberg trial as a field guide for committing war crimes and getting away with it has never occurred to me before. But then, I'm not a Bush administration legal appointee. It's probably worth remembering, though, that the Nuremberg Tribunal wasn't particularly impressed by the "I was only following orders" routine: 12 defendents hanged, 3 sentenced to life, 4 given long prison sentences, only 3 acquitted. If I were Donald Rumsfeld, I don't think I'd like those odds.
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posted by jonmc at 5:28 PM on June 7, 2004