OK, but this ignores the fact that the memo in question may or may not have been acted upon. To use an example, I am the defense secretary, and I tell my staffers to prepare memos to help me formulate a position on just exactly what methods of interrogation will be allowed under what circumstances. I tell staffer1 to tell me why I can torture anyone any time without restriction, staffer2 to tell me why looking cross-eyed at a prisoner is unConstitutional regardless of circumstances and a few more staffers to provide middle-ground positions of various types.

Once I have them, I conclude that staffer1 is full of crap because I can't ignore the law, staffer2 is full of crap because I will do a lot before I let a US city get destroyed by a nuclear weapon, and some middle-ground position is what we'll use going forward.

Now, let's say that staffer1's memo gets leaked. Have I committed some unspeakable wrong? The point is, there is not enough information in this to make a conclusion about what the administration's policy is, and going on about the memo (which advises unConstitutional actions, make no doubt) is not very productive, barring evidence that such a policy was actually enacted.

Thanks for continuing to shine the light on this.

OK, but this ignores the fact that the memo in question may or may not have been acted upon.

I was there writing about the the Aug. 1, 2002, memorandum (PDF) "Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A," from the Justice Department's Office of Legal Counsel for Alberto R. Gonzales, counsel to President Bush, which holds legal force, not the earlier-reported-on, but chronologically later March 6, 2003, whose precise provenance and legal standing is not yet publically clear.

The memo from August 1st, 2002, is an official opinion of the Office of Legal Counsel, as detailed here.

> OK, but this ignores the fact that the memo in question may or may not have been acted upon.

The best answer to this argument is here:

http://fafblog.blogspot.com/2004_06_06_fafblog_archive.html#108684557988712665

Actually, the Lincoln case is not at all clear-cut. He suspended habeas corpus on April 27, 1861, in the region between Washington, D.C., and Philadelphia. By the Constitution, only Congress could authorize this, but Congress was not in session, having adjourned on March 28, two weeks before Fort Sumter.

On Feb. 14, 1862, the Lincoln administration ended the suspension of the writ of habeas corpus and issued an amnesty to political or state prisoners no longer deemed dangerous. The tone was almost apologetic, and the proclamation took pains to explain that, at the early stage of the war, "Every department of the Government was paralyzed by treason," and that Congress "had not anticipated and so had not provided for the emergency."

But on Sept. 24, 1862, after fresh military disasters, with a gloomy prospect for the administration in the upcoming elections, with an unpopular conscription looming and doubt about the public's reception of the Emancipation Proclamation (preliminary issue Sept. 22), the President suspended habeas corpus again, this time over the entire North. The new directive specifically cited the resistance to the draft. It had been urged privately well before that, by several governors, especially Morton of Indiana who was plagued by disloyal militias and secessionist newspaper editors.

Congress, which was controlled by Radical Republicans hell-bent on pursuing the war by all means necessary, didn't get around to retroactive approval of Lincoln's actions until the short session that began November 1862. A bill was introduced to provide indemnity for the President's suspension of the writ of habeas corpus. This was done to make it legally correct, and to thwart the objections of Chief Justice Taney. It passed Dec. 8, the Senate changed it, and it finally cleared Congress, as the Habeas Corpus Act, on March 3, 1863. Almost two years had passed since the first wave of arrests.

Not sure what any of this means for your argument, but Lincoln, and his actions in preserving the union/liberating slaves often are held up as "necessary evils" by people who see no virtue in liberating Iraq.

Doug's comments are on point, but we need to continue them:

First, the right of habeas corpus can be suspended in the event of "rebellion or invasion." That was true in the Civil War, arguably true in WWII Hawaii, where the military chose to try petty civilian offenses before military courts. However, neither rebellion nor invasion is at issue in this conflict.

Second, the Supreme Court found in both wars -- in ex parte Milligan in 1866 and in Duncan v. Kahanamoku in WWII -- that the Federal courts still expected to participate where they were in session.

It's worth mentioning that the Court was even willing to extend this to patently illegal combatants, German spies who landed on our shores. “Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty.” -- ex parte Quirin, 1942

I bring this up because the Supremes are currently deliberating the Guantánamo case, where some of these interrogation techniques seem to have originated, according to MG Taguba's 15-6 report on Abu Ghraib. Chief Justice Rehnquist has written at length on this topic -- see "All the Laws but One" -- and he clerked for Justice Robert Jackson. And Jackson not only prosecuted at Nuremberg but set down some very clear direction on how limited the President's "Commander in Chief" Art. II powers can be.

BTW, see today's SF Chron for an op-ed by John Yoo, allegedly one of the Justice Dept. authors of the new policy. http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/06/15/EDGKJ766AM1.DTL

Not pretty reading.

One other thing: it may not matter if the Justice Dept memoranda were acted on. Under the Yamashita precedent, commanders are still responsible for everything that happens under their command -- US legal precedent, since we tried Gen. Yamashita on that charge. Under the Goldwater-Nichols Act that includes everybody in the chain up to Rummy.

Of course, for a lawyer to draft such a memorandum could get them in legal trouble later. Hans Frank and Wilhelm Frick, lawyers by trade, wound up in the dock at Nuremberg for writing such legal doctrine. Keitel and Jodl wound up with them for signing such orders. (Robert Jackson was lead prosecutor in their trial).

Once again, all this discussion about the law and the constitution isn't very useful. The law is what the Men with Guns say it is. So long as the Men with Guns do what Bush tells them, his word is the law.

Now someday Bush may no longer have power, and his enemies may use "the law" to go after him. But "the law" will still just be the loyalty of the Men with Guns.

Much is made of the supposed loyalty of the Men with Guns to this set of laws or that Constitution. I'm very skeptical of such claims. AFAIK nearly all of the members of the armed forces will do what they're told regardless.

Any member of the armed forces who disagrees with my assessment is free to disobey his obviously illegal/unconstitutional deployment orders and report back here on what happens to them.

Any volunteers?

>>One other thing: it may not matter if the Justice Dept memoranda were acted on. Under the Yamashita precedent, commanders are still responsible for everything that happens under their command -- US legal precedent, since we tried Gen. Yamashita on that charge. Under the Goldwater-Nichols Act that includes everybody in the chain up to Rummy.

Ahem, that's "commanders WHO LOSE are still responsible for everything that happens under their command."

Mass murderers like Arthur Harris, Curtis LeMay, etc. aren't held responsible. So unless the US is overrun by an enemy government, I bet both the White House lawyers and Rumsfeld are safe.

There is no substitute for victory. Our forces could rape and murder everyone in the entire MidEast and, provided the US homeland remained secure, get away scot free. The examples of China and Russia are instructive in this regard.

TANJ.

commanders are still responsible for everything that happens under their command -- US legal precedent, since we tried Gen. Yamashita on that charge. Under the Goldwater-Nichols Act that includes everybody in the chain up to Rummy.

I believe you mispelled "Bush". The Secretary of Defense isn't a military commander and is not in the chain of command.

Great post.

My one quibble: At the time Lincoln suspended habeas corpus because of rebellion, it wasn't 100% clear that this was a Congressional and not Executive power. That wasn't cinched until SCOTUS said so, after the war.

Our new royalty have no excuse. On the John Yoo formulation, the President has the power to discard conventions against nuclear and poison gas warfare and against genocide, if he in his sole authority as Commander in Chief wants to give those policies a whirl. What a funny idea, laws of war that only apply when we aren't at war!

For other countries, of course the old rules apply: And all Iraqi military and civilian personnel should listen carefully to this warning. In any conflict, your fate will depend on your action. Do not destroy oil wells, a source of wealth that belongs to the Iraqi people. Do not obey any command to use weapons of mass destruction against anyone, including the Iraqi people. War crimes will be prosecuted. War criminals will be punished. And it will be no defense to say, "I was just following orders."

Good thread. Some rejoinders:

To jaed: the Goldwater-Nichols Act does specifically put the National Command Authority (NCA - President and SecDef) in direct command over the regional commands (like CENTCOM) and special commands (like Special Operations or SAC). The Joint Chiefs and the service departments aren't in the direct chain in this scheme. So command responsibility goes straight to the top.

To T.J. Madison: We're continuing the "men have guns" being the ultimate arbiter of enforcement. That may be true in every country from Argentina to Zimbabwe. I like to think the US is different, and that the military serves the civilian public. That's the civilian authority ruling this country as expressed in the Constitution they swear an oath to.

We thought strongly enough about it in 1945 not to shoot the enemy leaders out of hand, but to try them for violating their professional ethics as soldiers and jurists. We hanged Yamashita for letting atrocities happen under his command; we hanged Jodl and Keitel for signing orders like Copper Green; we hanged Frank and Frick for constructing ultra vires legal charades.

Now maybe that won't happen to our leaders, but if the US does repent this episode the way it repented the Nisei internments or the My Lai massacre there may be repercussions: tort claims, blackened historic reputations, or maybe the kind of Orestes-like torment that McNamara is having in his twilight years. That is punishment of a sort: some of these generals like going down in history as heroes.

To Mr. Lazarus, you're right; Iraqi officials from Saddam and Chemical Ali on down do have to answer. Trouble is, the Bush Administration has been slow to bring charges, and if they fail to do that then the Iraqi war criminals either wind up having to walk, or get turned over to Iraqi courts (which may be the same thing). By this time after WWII we had two major war crimes trials in pretrial proceedings.

Jay Leno, via DeLong: "According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security - so if that’s legal, what the hell are we charging Saddam Hussein with?"

These are extrodinary times. We are fighting a murky enemy hidden in the shadows, and we have to use every means possible to discover their plans and interdict them before they hit us.
Beyond that, there is not evidence the memos in question were acted upon. Our leaders need analysts and staff that will think beyond the box and propose the unthinkable, so that every possible option is on the table.
For links to news, views, politics, and government, bookmark All Things Political.

Stuart Taylor also addresses the topic in his current column, here, for the time being.

"Any member of the armed forces who disagrees with my assessment is free to disobey his obviously illegal/unconstitutional deployment orders and report back here on what happens to them."

You've voiced this opinion here before, T.J. Madison. Unfortunately, not only is it not universally acknowledged that said deployment orders are unconstitutional, but this opinion goes against the practice of fifty years now, and is uncommon. That doesn't mean you are incorrect; it simply means you have no legal precedent, nor significant political movement, that agrees with you. Repeating the point over and over here is unlikely to advance either.

"The Secretary of Defense isn't a military commander and is not in the chain of command."

Of course the Secretary is in the chain of command. Directly between the commander of a Command -- in this case Centcom -- and the President. It's the Joint Chiefs who are not in the chain of command. All as per the Goldwater-Nichols Act you are directly responding to. It might be useful to look into the relevant provisions.

"These are extrodinary times. We are fighting a murky enemy hidden in the shadows, and we have to use every means possible to discover their plans and interdict them before they hit us."

To quote Rivka:

"The little bit I have read about, it seems to me that it is being completely blown out of proportion," said Roger Krueger, who served in Vietnam and is the chapter's president. "When a person is in combat, they have to do whatever they have to do to stay alive."

And sometimes, apparently, when a person is not even remotely close to combat, in order to stay alive they have to take unarmed, helpless, locked-up men, strip them naked at gunpoint, pose them as if they're having oral sex with each other, and take pictures. Who are we to judge, who have not seen the hell that is war?

The indisputable fact is that no actionable intelligence is known to have come out of this torture and these murders, and that most of the people arrested are innocent. Generalized blatherings about We Have To Do What We Have To Do are worthless, and would be equally useful to defending nuking Iraq into glass, or torturing 50% of the population.

"Beyond that, there is not evidence the memos in question were acted upon. "

Well, not beyond endless Army paperwork, the Taguba report, and the testimony of tens of thousands of Iraqis, as well as pictures and videotape. But who are you going to believe, your lying eyes, or this line?

"Our leaders need analysts and staff that will think beyond the box and propose the unthinkable, so that every possible option is on the table."

a) You apparently have trouble distinguishing between enacted policy and events, between legal documents of authorization, and "options."

b) Every option should not be on the table. Throwing out the Constitution should not be on the table. Sending troops out to, say, randomly slaughter people, should not be on the table. President Bush declaring that all Iraqis fighting us should lay down arms, or he'll set fire to himself on the White House lawn, should not be on the table. Executing you for making silly remarks on blogs should not be on the table.

There's an infinitely long list of things that should not, in fact, "be on the table."

"For links to news, views, politics, and government, bookmark All Things Political."

Nice advertisement. Links making a specific point are entirely welcome in comments. I don't know if Joe has a policy against using comments for general advertisements, but I do.

(I just wanted to note my thanks to Gary and Bob for correcting my post concerning the chain of command. Obviously I was misinformed.)

Gary,

Jonah Goldberg on Townhall.com today has a valid point:
"Well, if the barbarians get all of the benefits of the Geneva Convention without obeying any of its rules, then it becomes not merely quaint, not merely worthless, but a tool of those who wish to overthrow all it stands for."

I would further propose that any discussion of Constitutional rights apply to citizens of the US only... and that the first thing that should happen to so-called citizens like Taliban Johnny Lindh captured working with our enemies in a combat zone is that they no longer enjoy that status from the moment of capture.

Now, I expect to be disagreed with on this; belief in the value of fetishes like the UN or the Geneva Convention in dealing with barbarians is an article of religious faith with some people. The problem is that writing them off as hopelessly superstitious leaves me and mine in the crosshairs right along with them fighting with one hand tied behind our backs. If they want to (or could) volunteer to be the only victims of the next shopping mall bomb then I would be happy to leave them to get killed by their delusions.

Unfortunately, not only is it not universally acknowledged that said deployment orders are unconstitutional, but this opinion goes against the practice of fifty years now, and is uncommon. That doesn't mean you are incorrect; it simply means you have no legal precedent, nor significant political movement, that agrees with you.

Well, Gary, it actually does mean TJ is incorrect. The Constitution isn't some kind of scientific constant; I could be right about the 100th digit of Pi even if everyone disagreed with me. But the Constitution, like language itself, derives most of its meaning from consensus. We can't do some experiment with sensitive instruments to find the "true meaning." The meaning comes from the rough consensus of society, which rejects TJ's assertion.

I could run around on blogs insisting that "cat" actually means "hat," and I'd be wrong. Not because you can "prove" that "cat" has an inherent connection to furry quadrapeds, but precisely because almost everyone would disagree.

"Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose — and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, 'I see no probability of the British invading us' but he will say to you 'be silent; I see it, if you don't.'

"The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood. "

--Abraham Lincoln

>>Well, Gary, it actually does mean TJ is incorrect. The Constitution isn't some kind of scientific constant; I could be right about the 100th digit of Pi even if everyone disagreed with me. But the Constitution, like language itself, derives most of its meaning from consensus. We can't do some experiment with sensitive instruments to find the "true meaning." The meaning comes from the rough consensus of society, which rejects TJ's assertion.

You are correct, and this is the primary weakness in any constitutional system. The language will be (and has) been perverted and twisted so as to allow, even encourage, the government to do the very things the constitution was designed to prevent. Institutional logic plays a role here once more. Bureaucracies which can subvert those consititutional and legal constraints which would inhibit their growth will have a competitive advantage. Constructive use of propaganda to induce popular tolerance for such subversion should be common and effective.

If we agree with the current "interpretation" of the constitution, which seems shockingly close to "whatever we want it to say to suit our short-term political objectives," we should at least be honest and drop the fiction that our government is somehow fundamentally different from other governments because of our wonderful constitution.

We should probably also stop referring to the Founding Fathers, whose graves could be linked to turbines and harnessed as a potent energy source these days.

People are always looking for some excuse the rules don't apply to them, at SDN found his. Following the laws of war, that's one hand tied behind one's back. What SDN means by this is, Civilization is such a drag. Let's see if the barbarians had more fun. (Our hands are tied pretty loosely: nothing stops us from executing terrorists after a trial.)

The truth is simple. When the Founding Fathers (and their forebears) endorsed habeas corpus, they knew perfectly well what it meant: they'd been dealing with Tories. When we signed the latest version of the Geneva Conventions in 1949, we had just finished off the Nazis and the Japanese, and the latter in particular were quite lax in their adherence to the laws of war. We hanged some of them for it. Yet their threat to our form of government was vastly greater.

SDN and his NRO source are bringing us the ultimately irony, laws of war that don't apply in wartime, because wartime is an emergency. How adopting torture will help us win any war for hearts and minds escapes me—and if we plan to use torture for reprisal and intimidation across the Muslim world, we'll need a much larger army and a much smaller national conscience. I think it would be better if torture advocates just buy their S&M pornography in the old way.

TJ,

Congress has officially endorsed the wars in Iraq and Afghanistan and continues to do so by appropriating money on a regular basis. The President is not making war against the will of Congress. If he were, you might have a point. As it is, you don't.

Now, I might very well agree with many of your beliefs regarding the improper modern interpretation of the Constitution, being a bit of an originalist and libertarian. But you haven't actually made an argument for any of them, so it's impossible to tell.

Lazarus:

The whole point of the Geneva Conventions is that they are reciprocal in nature. We will treat your prisoners like this if you treat ours like this. Since OBL isn't a signatory, and his allies and minions most certainly do not follow the laws of war, we don't have to either.

I'm not endorsing torture--I think that is and ought to be illegal. Torture obstructs our war effort and degrades our soldiers. But the Geneva Conventions don't permit soldiers to be interrogated beyond name, rank, and serial number, a restriction we simply can't afford in the fight against terrorists. They also impose all sorts of other requirements which Goldberg mentions, like dormitory housing and the provision of a canteen, that make little sense. They give more rights to POWs than ordinary criminal suspects and convicts, which is wise in a war between the US and Germany, but stupid in a war between the US and terrorists.

Besides, it is certainly possible to treat prisoners humanely without complying with every jot of the Geneva Conventions.

Actually, Rob, the key point is not whether OBL is a signatory - it's the fact that al-Qaeda does not comply with the requirements of the Conventions that must be followed in order to receive its protection. That would mean things like regular uniforms, etc.

The Conventions are more than reciprocal agreements - part of their impetus is to define the demarcation on the battlefield between military and civilians, because the deliberate blurring of that distinction inevitably leads to mass casualty situations as armies roll through.

So that demarcation needs to be encouraged, and there also need to be consequences if it is violated. Otherwise, of course, it loses all meaning and we're back to square one.

During WWII, for instance, Allied soldiers acted as guerilla soldiers in civilian uniforms were executed as spies and saboteurs - and Japan and Germany had the legal right to do so even though all parties were signatories. (Murdering captive soldiers in regular uniform as the SS did, on the other hand, was way beyond the pale. After that, the Canadians stopped taking German captives for a little while.)

I will add for the history impaired that the key difference between those Allied guerilla soldiers and today's terrorists is that the former focused on military targets while the latter explicitly target civilians.

All of this is a sideline to the issue of torture (though it is relevant to what rights al-Qaeda prisoners lack and why). In an age of non-state armies, one could argue that the Geneva Conventions may be losing their usefulness, or need to be applied much more narrowly.

That's a worthwhile debate - but not the issue Gary's post is about. Gary's post is about torture, and proper checks and balances within the American system of government.

Torture is not any inconvenience suffered by a prisoner. Nor is it any interrogation technique beyond asking nicely (that definition is a confusion with the Geneva Convention rules for uniformed prisoners of war between signatory nations). Defining what constitutes torture is an ongoing effort - as it is for any legal definition of anything.

That said, there are activities that clearly cross this line, and once that's the case we're beyond the issue of the Geneva Conventions. Throw in separation of powers issues, and even if the activities approved for prisoner interrogation do NOT corss that line there's still a lot to discuss.

The Geneva Conventions themselves provide a procedure for placing unlawful combatants outside their protection (having the President make the determination from the Oval Office is not the procedure). Al Qaeda is not a signatory to the Geneva Conventions, and as far as I'm concerned, those persons who are determined to be its members in a forum where they may defend themselves may be imprisoned as terrorists.

Afghanistan is a signatory, so it is not nearly so clear why the Geneva Conventions do not apply to Taliban prisoners. Iraq is also a signatory, and we proclaimed publically that we would honor them there, while privately authorizing the opposite.

The Geneva Conventions don't prohibit interrogating prisoners beyond name, rank, and serial number. They prohibit punishing prisoners for refusing to go further than this, which is a very different concept. (See Article 17). We have lots of military interrogators who know how to obtain intelligence lawfully.

The laws and treaties against torture admit of no "unlawful combatant" exceptions whatsoever, and I see no dispute between us there.

"...and that the first thing that should happen to so-called citizens like Taliban Johnny Lindh captured working with our enemies in a combat zone is that they no longer enjoy that status from the moment of capture."

How would one determine that said party is worthy of "no longer enjoy[ing] that status" if they have no right?

Perhaps, instead of being guilty, they were merely a driver, an interpreter, a medic. Perhaps they literally were somehow simply foolhardy enough to be tourists, to be visiting a relative, to be traveling through on some strange personal errand.

Perhaps they are under extenuating circumstances, such as on the battlefield, but because their son, daughter, wife, husband, parent, is being held captive and their aid compelled at threat of death or torture of their beloved.

And yet other possibilities exist. But without a right to a trial, or any other right, we are to simply rely on the snap judgement of someone such as you, SDN, to determine that someone has no rights.

That is not a system of laws, nor a system of justice. That is a system no different than that of a terrorist. What price such "victory"?

A separate point: if we are known for barbaric torture and arbitrary murder of prisoners, why would anyone we fight surrender?

I'm sure anyone serving in our military will appreciate such "help" as you propose, SDN, which is why so many essays have been penned with such passion by so many serving who are appalled at such proposals that threaten the lives of our own troops. What is your answer to *Sgt. Stryker* and our other military whom you so blithely threaten?

Some rejoinders. Joe Katzman is right in noticing the distinction in WWII between executing illegal combatants -- notably, spies and saboteurs -- and executing uniformed special forces. That latter instance was the Commando Order, something that got Marshal Keitel executed. We ourselves executed a number of German spies, both in the ETO and in the continental US (although we don't seem to have resorted to torture).

This is in conformity with III Geneva Conventions on prisoners of war, which does indeed spell out a number of rights. Rob Lyman and others mention this, but it's worth remembering that III and IV Geneva do distinguish between legal combatants -- who are entitled to this treatment -- and those who are not. The legal ones are are:
Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

© That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war. (III Geneva Convention, Art. 4).

It doesn't seem to matter whether their government signed the Conventions or even is legally recognizable (IV/Art. 2). We signed it, and that's what matters. Art. 3, IV Geneva on civilians in general makes it plain that torture is illegal under any circumstances and that any sentences or executions are to be by a proper court. Further Articles make it plain that we can indeed try and execute spies and saboteurs -- we merely have to show due process, which includes avoiding torture. The Nuremberg Charter, further, still has force of law and nothing is stopping us from prosecuting war criminals, which presumably includes the al-Qaeda leadership and Saddam and his coterie.

Finally, this: it would complicate our ability to prosecute enemy war criminals if we are guilty of similar offenses. Adm. Doenitz -- despite the fact he was, among other things, the last Führer -- survived Nuremberg because his counsel, a German Navy captain, got a statement from Adm. Nimitz that the US did indeed engage in unrestricted submarine warfare. That charge didn't stand up too well after that.

Thought for this thread, something that Chief Justice Rehnquist may be considering in light of the Gitmo case:

"The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. *** Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.
*** There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries and its inhabitants. He has no monopoly of ‘war powers,’ whatever they are."
-- Justice Robert Jackson, concurring in Youngstown Sheet & Tube, 1952

Phil Carter (who is invaluable reading on any subject related to the military and the law) has another relevant follow-up *here*.

"We ourselves executed a number of German spies, both in the ETO and in the continental US (although we don't seem to have resorted to torture)."

I'd be surprised to find there weren't at least a small smattering of low-level incidents of torture in the field; which is entirely different than high-level-authorized, or a policy of, torture, of course.

Gary -- Yes, and that's the point. US military and constitutional law doesn't stop us from dealing with illegal combatants -- i.e., terrorists -- though some torture proponents have claimed otherwise. And we may have individual abuses. The difference should be that we recognize physical abuse, and sexual abuse, as a breakdown in discipline, and not state policy.

Mark Kleiman also has good comments *here*.

Yep, Bob Harmon, I'm agreeing with you.

Joel's Iraq report on 6/14/04 includes a link to an essay called "Soldier Deconstructed," by Questing Cat. Key quote:

"Notice, my first loyalty is to the defense of the constitution, so that even where my country may fail, I must hold true to the ideals that formed it.

"In most respects, I have to hold myself above the troubles of my nation. I have to fulfill specific obligations set down through a long torturous process from the constitution to various leaders and precedents. I am held to a higher standard of legal code and far more restricting way of life. ... Of all the armies in the world, how many vow to defend a piece of paper, rather than a king or queen. The most remarkable thing about US soldiers is how far removed we really are from the political structure. We serve when called, we train when at peace."

Wow.

If that's the ethos of the front line US soldier, then everybody behind him owes him/her the duty of upholding the rule of law they swore to. To do otherwise is to betray that faith.

Quod erat demonstrandum: QED.

I'm sure Paul Johnson was protected by the Geneva Convention, right? Each and every one of his Constitutional rights upheld? Amazing how well it works.