Excellent Legal Analysis of The Torture Memo...

[Taylor Mason Powell]

Here: http://tinyurl.com/26kc3

Written by a U. of Miami Law Professor named Michael Froomkin.

excerpt:

On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with “enemy combatants”. The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.

(emphasis in original)...

[Spazito]

1. Thank you for this! Very interesting

I have been waiting for the analysis of the memo from the legal community, I am curious to see who will defend the memo based on legal arguments not presented in the memo, I suspect there will be few, if any.

[kofijoe]

6. Other than Judge Napolitano on Faux... (eom)

[stavka]

2. The Law that they are looking at -

United Nations Treaty on Torture

Article 1

1. For the purposes of this Convention, 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.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. 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.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
----
Geneva Convention Article 17

"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."
----
US Code Section 2340A. Torture

(a) Offense. - Whoever outside the United States commits or
attempts to commit torture shall be fined under this title or
imprisoned not more than 20 years, or both, and if death results to
any person from conduct prohibited by this subsection, shall be
punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction. - There is jurisdiction over the activity
prohibited in subsection (a) if -
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States,
irrespective of the nationality of the victim or alleged
offender.
(c) Conspiracy. - A person who conspires to commit an offense
under this section shall be subject to the same penalties (other
than the penalty of death) as the penalties prescribed for the
offense, the commission of which was the object of the conspiracy.

----------

I don't see the excemption "Except for the Chief Executive" anywhere there.

[Miss Authoritiva]

3. Apologia Pro Tormento (Not!)

"If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, 'I was just following orders' is NOT (and should not be) a defense."

I thought Ashcroft (and the aides sitting behind him) looked genuinely frightened testifying at the Senate Committee hearing yesterday. And it wasn't just the threat of contempt of Congress charges.

This is an interesting (and fairly plain-English) analysis, and the follow-up comments at the site are provocative too.

[Miss Authoritiva]

4. DUP POST DELETED

[Disturbed]

7. Torture endorsed by Pres.?

Asscrack kept repeating that the Pres. did not approve of torture.

Did General Miller act upon his own to allow torture at Getmo?

Did the other commanders in Iraq and Afghanistan allow torture on their own?

Did the people that administered torture act upon their own volition?

For awhile everyoine was calling what occured "abuse" and "humiliation" tactics. It is now evident that more than that occured: Water submerging, blanket smothering, beatings, rapes, and murders and other methods of torture occured. Out of a 6K Classified Report, 2K pages were not delivered to Congress with the excuse that they were mistakenly not copied. Those pages have still not been delivered. Seems like obstruction in my view.

Also, this memo giving carte blanche for torture that Asscrof refused to turn over to Congress even in private (Classified) turns up on the Net in the full version is not covered un "Executive Privalege". Apparently, while Asscroft was refusing to allow Congress access it turned up on the Net without his awarness. Why did Asscroft refuse to allow Congress access to this 42 page report?

[Spazito]

9. The report is bigger than the 42 pages posted on the net...

there were attachments as well. One has to wonder if the attachments were the Executive Orders that bush would have signed as per the legal opinion?

[Beetwasher]

5. The Responsibility is Squarely in the Chimp's Lap!

According to the memo, the Geneva Conventions and the laws against torture can only be bent or ignored at the behest of the President. ONLY the President has the power to over ride the law, according to their own interpretation.

[Justice]

8. I've Talked With Michael Froomkin On Other Issues

and am delighted to see this piece. Thanks.

[ConsAreLiars]

10. Center for Constitutional Rights president Michael Ratner

on Democracy Now! this AM discussed the significance of this memo:

The Pinochet Principle: Bush Defends Torture in the Name of National Security
http://www.democracynow.org/article.pl?sid=04/06/09/1444252

"This memo has Rumsfeld's name on the cover. It also says something really interesting. If our soldiers or if our people are going to do this kind of conduct, it might be best to shield them with the Presidential order or directive. So, it indicates on page 24 of the document that a Presidential directive would be very helpful here. So, that's the other document that you want to see here. Is there a Presidential directive? Look, it's not going to say go torture people, but in my view, it may say, these are techniques that are authorized to be used which many lawyers will say constitute torture or cruel and inhumane or degrading treatment. It's an extraordinary memo. If people want to see it, we have it linked on our website as a PDF file. Its www.ccr-ny.org. You can go there and look at pages 21 to 24. If you think this country is going in a bad way, this will confirm your worst fears."