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Lawyers Ascribed Broad Power to Bush on Torture

Times Staff Writers

On the eve of the war in Iraq, Bush administration lawyers spelled out a strikingly broad view of the president’s power that freed the commander in chief and U.S. military from the federal law and international treaties that barred the use of torture.

In past wars, presidents have claimed special powers. During the Civil War, President Lincoln suspended habeas corpus and allowed accused traitors to be tried before military courts. Shortly after the Japanese attack on Pearl Harbor, President Franklin D. Roosevelt issued an order authorizing the military to intern thousands of Japanese Americans.

For the record:

12:00 AM, Jun. 11, 2004 For The Record
Los Angeles Times Friday June 11, 2004 Home Edition Main News Part A Page 2 National Desk 1 inches; 60 words Type of Material: Correction
Memo about torture -- A headline on a news analysis in Thursday’s Section A about a legal memo written for the Defense Department on President Bush’s powers regarding the use of torture in war said the memo was dated weeks after the invasion of Iraq. The memo was dated March 6, 2003, two weeks before the start of the war.

In those instances, however, the president acted with the approval of Congress. Rarely, if ever, have the president’s advisors claimed an authority to ignore the law as written by Congress.

The legal memo, written last year for the Defense Department and disclosed this week, did not speak for President Bush, but it claimed an extraordinary power for him. It said that as the commander in chief, he had a “constitutionally superior position” to Congress and an “inherent authority” to prosecute the war, even if it meant defying the will of Congress.

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Congress adopted an anti-torture law in 1994 that barred Americans abroad acting under U.S. authority from inflicting “severe physical or mental pain.”

But the 56-page memo on “Detainee Interrogation in the Global War on Terrorism” maintains that the president and his military commander cannot be restrained in this way.

“Congress lacks authority ... to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during a war,” the memo asserts. “Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe [the law] to avoid this difficulty and conclude that it does not apply to the president’s detention and interrogation of enemy combatants.”

The memo was dated March 6, 2003, two weeks before the start of the war in Iraq. In earlier memos, administration lawyers said the president could designate even American citizens arrested within the United States as “enemy combatants,” and thus theoretically subject them to torture.

But according to several mainstream legal scholars, this turns the Constitution on its head. The 18th century document says Congress makes the laws, and the president has the duty to carry them out.

“He shall take care that the laws be faithfully executed,” the Constitution says of the president.

Moreover, the Constitution grants Congress specific powers to set the rules in war and peace, including for captives.

“Congress shall have the power ... to declare war and make rules concerning captures on land and water ... to define offenses against the law of nations [and] to make rules for the government and regulation of the land and naval forces.”

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A broad range of legal experts, including specialists in military law, say they were taken aback by this bald assertion of presidential supremacy.

“It is an extraordinary claim. It is as broad an assertion of presidential authority as I have ever seen,” said Michael Glennon, a war law expert at Tufts University. “This is a claim of unlimited executive power. There is no reason to read the commander-in-chief power as trumping the clear power of Congress.”

University of Texas law professor Douglas Laycock added, “It can’t be right. It is just wrong to say the president can do whatever he wants, even if it is against the law.”

Veteran military lawyers also said they were surprised and dismayed by the memo.

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“It’s an argument I have never seen made before -- that the commander in chief’s war-fighting powers trump the restrictions in the Geneva Convention,” said Grant Lattin, a former judge advocate for the Marines who practices military law in Virginia. “I am having a difficult time even following the logic, that somehow because this is a new type of war that these military commanders’ authority has somehow grown larger than the restrictions that we have accepted in the Geneva Convention.”

Retired Rear Adm. John Hutson, the former judge advocate general for the Navy, said the memo read as though the lawyers were trying to bend the law to benefit their client, rather than stating the law fairly and accurately.

“That is not the job of people advising the president or the attorney general or the secretary of Defense. They have to be right legally, and I think they have an obligation to be right morally. I think they failed on both counts,” said Hutson, now dean of the Franklin Pierce Law Center in Concord, N.H.

“The argument proves too much,” he added. “If the president’s inherent authority as commander in chief trumps domestic and international law, where is the limit? If every sovereign can ignore the law, then no one is bound by it.”

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It is not clear who wrote the memo or what effect it had. This week, administration officials, including Atty. Gen John Ashcroft, insisted that U.S. officials did not condone or authorize the use of torture. They characterized the memo as a view presented by lawyers in the administration that was not put into practice.

In 2002, the Justice Department’s Office of Legal Counsel took the lead in arguing for a broad view of presidential authority in the war on terrorism. The same office contributed to the Pentagon’s “working group” memo.

The office was led by two conservative law professors, Jay S. Bybee and John C. Yoo. They wrote the key memos declaring the Geneva Convention did not apply to accused terrorists, the Taliban or other detainees who were held at the U.S. naval base at Guantanamo Bay, Cuba.

They also said the president had the power to arrest and hold in military custody American citizens who were deemed to be “enemy combatants.” The administration cited this authority as the basis for holding Jose Padilla, an accused terrorist who was arrested at Chicago’s O’Hare Airport.

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The Supreme Court is considering Padilla’s case and is expected to rule on it before the end of June.

Bybee and Yoo have left the government. Bush nominated Bybee as a judge on the U.S. 9th Circuit Court of Appeals in San Francisco, and March 14, 2003, he won confirmation by the Senate. Yoo, a former clerk to Supreme Court Justice Clarence Thomas, has returned to his position as a law professor at UC Berkeley.

The Pentagon’s legal working group was chaired by the Defense Department’s general counsel, William J. Haynes II. He too has been nominated to be an appellate judge, in the U.S. 4th Circuit in Richmond, Va.

In March, the Republican-controlled Senate Judiciary Committee narrowly approved his nomination, but he has not been brought up for a final vote in the Senate.

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A year ago, Haynes told Sen. Patrick J. Leahy (D-Vt.) that he and the Pentagon opposed any use of torture.

“We can assure you that it is the policy of the United States to comply with all of its legal obligation in its treatment of detainees,” he said in a letter citing the Geneva Convention and the anti-torture law. “The United States does not permit, tolerate or condone any such torture by its employees under any circumstances.”

The letter, dated June 25, 2003, came three months after the secret memo argued that the president could employ the use of torture if he chose to do so.


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