The Secret Torture Memo?

The New York Times is reporting that, in spite of congressional legislation passed in December 2005 banning the use of "cruel, inhuman, or degrading" treatment of all prisoners in US custody, the Justice Department had, in February 2005 issued a secret memo providing the CIA witjh "explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures." Even after the passage of the Detainee Treatment Act in December 2005, the Justice Department memo remained in force and was reinforced by a second secret memo stating that the CIA's methods did not constitute "cruel, inhuman, or degrading" treatment. Such policies would have been in conflict with a public memo released by the Justice Department in December 2004 which declared torture to be an "abhorrent" practice, and broadened its definition.

The Bush Administration is denying this report, claiming that, in the words of White House spokeswoman Dana Perino, "This country does not torture. It is a policy of the United States that we do not torture and we do not." Furthermore:

Asked about the story Thursday, Perino confirmed existence of the Feb. 5, 2005, classified opinion but would not comment on whether it authorized specific practices, such as head-slapping and simulated drowning. She said the 2005 opinion did not reinterpret the law.

Additionally, Justice Department spokesman Brian Roehrkasse said the 2004 opinion remains in effect and that ''neither Attorney General Gonzales nor anyone else within the department modified or withdrew that opinion.''

I am on record as being open to the possibility that torture, or coercive interrogation, is something that must be considered in very specific circumstances and under very specific conditions to protect the US, and that I am skeptical of the claims that the use of torture/coercive interrogation is counter-productive. But this is essentially a different question.

The president is not allowed to legislate, especially when Congress has enacted a law governing a situation or circumstance. When Congress passes a law forbidding the use of coercive interrogation, the president must obey that law. I have written numerous times about this argument of war powers: in the absence of a declaration of war, the president is still bound to follow existing law. In the absence of a specific congressional act, the president does have some latitude to interpret or implement policies. But when Congress speaks, as it did by passing the Detainee Treatment Act in December 2005, the Constitution demands that the president comply with the law. It may be that the president and the Justice Department were able to make a semantic argument that allowed them to define certain tactics as "not torture" but at least on the face of it, such an interpretation would seem to be a flagrant violation of the spirit of the DTA, especially in light of the December 2004 memo.

If the report by the Times is true, this is likely a serious violation of both international and domestic law. The practices at issue -- "a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures" -- are almost certainly violations of Common Article 3 of the Geneva Convention, which the Supreme Court ruled in June 2006 the US was bound to apply to all US-held detainees. The Military Commissions Act of November 2006 gave the president the power to establish specific permissible interrogation techniques, which President Bush did in July 2007, but with the caveat that the techniques would not violate the rules of the Geneva Convention.

The president must follow the law. Nothing can justify an unconstitutional action. As I have written many times before, if the president believes he needs broader powers to act without congressional authorization, he can ask for a declaration of war. Without one, the law remains.

UPDATE: Over at the Chronicle for Higher Education, it's noted that:

This affair might have played out differently, however, had Congress spelled out exactly which techniques it considers cruel, inhuman, and degrading. Many of the scholars involved in the recent debate over the American Psychological Association’s policy on interrogations expressed concerns about the vagueness of federal and international prohibitions on torture. U.S. laws and international treaties, they said, should more emphatically define and ban so-called soft torture techniques, such as long-term isolation and sensory deprivation.