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Brad at Sadly, No! points to this piece in the Washington Post that just made my jaw drop:
The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes. […]
“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.
“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
In comments Bitter Scribe adds:
Punishable offenses committed by enemy civilians do not, until further notice, come any longer under the jurisdiction of the courts-martial….
Persons suspected of criminal action will be brought at once before an officer. This officer will decide whether they are to be shot.
With regard to offenses committed against enemy civilians by members of the Army, prosecution is not obligatory even where the deed is at the same time a military crime or offense.
—Directive by Field Marshal Wilhelm Keitel, May 1941
The more things change...
The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes. […]
“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.
“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
In comments Bitter Scribe adds:
Punishable offenses committed by enemy civilians do not, until further notice, come any longer under the jurisdiction of the courts-martial….
Persons suspected of criminal action will be brought at once before an officer. This officer will decide whether they are to be shot.
With regard to offenses committed against enemy civilians by members of the Army, prosecution is not obligatory even where the deed is at the same time a military crime or offense.
—Directive by Field Marshal Wilhelm Keitel, May 1941
The more things change...
