Dr. Mengele Would Be Proud

I have read the March 2003 "torture memo" requisitioned by Defense Department general counsel William J. Haynes II. Anyone familiar with Hannah Arendt's observations regarding the "banality of evil" will find this memo a most chilling document.

To begin with, the memo is a pernicious exercise insofar as it doesn't even attempt to argue that torture is permitted under applicable international law or U.S. law, but rather argues that the President can do whatever the hell he wants, international law be damned, and anyone else can violate international law and even U.S. anti-torture statutes as long as they are following the orders of their commander-in-chief. It's your basic "this is how you can violate the law and avoid prosecution" primer.

I'll dispense with any analysis of the "international law be damned" argument in the memo; it would be a mere cavil to invoke international law against torture in Iraq when the very invasion of Iraq flagrantly flouted international law.

The memo begins with an analysis of various international and U.S. anti-torture laws, including pertinent provisions of the Geneva Conventions. The typically sterile language of legal analysis is indeed unsettling in a discussion of torture, but it isn't until the third section of the memo, captioned "Legal doctrines under the Federal Criminal Law that could render specific conduct, otherwise unlawful, not unlawful," that the memo veers into a legal and moral twilight zone.

I'll spare you the analytical gymnastics, which even by legal standards are, forgive the pun, tortured. Briefly, the memo argues that the President is bound only by federal law, not by international law, and that even federal law does not proscribe the President's exercise of his powers as commander-in-chief. "Congress can no more interfere with the President's conduct of of the interrogation of enemy combatants than it can dictate strategy or tactical decisions on the battlefield," the memo states. The memo then finds that federal criminal law that prohibits torture is thwarted if the torture is committed upon the orders of the commander-in-chief.

This is the most startling aspect of the memorandum, that it plainly fails a fundamental test of legal argument: its reasoning ineluctably leads to absurd results, or as one my law school professors would say, a "parade of horribles." The more complex legal arguments are, the more abstract the fundamental legal underpinnings of the argument, the more necessary it is to run an example through the reasoning and see what comes out the other end. This exercise frequently reveals that ostensibly reasonable and even elegant briefs "prove too much" and thereby prove nothing at all. For instance, a legal brief that argues for exculpation of a murder given a particular set of facts is defective if it similarly exculpates all murders and therefore nullifies murder statutes.

This particular memorandum fails what I'll refer to as the "Mengele test": would notorious Nazi torture doctor Josef Mengele be guilty under U.S. law if his sadistic medical "experiments" had been undertaken pursuant to orders? The unmistakable answer in the torture memo is "no, as long as the orders originated with the commander-in-chief." I think most Americans would be startled to realize that the Nazis' "I was only following orders" defense is an effective defense here in the Land of Liberty, and yet that is precisely the conclusion of the torture memo.

The memo, or more precisely the requisitioning of the memo by the Bush administration, fails a second Mengele test, as well: it cloaks perfidy in the perverted practice of an honorable profession. Mengele tortured, no matter the ridiculous claims of medical experimentation. Similarly, this memorandum, for all of its citations of law and invocation of legal principles, seeks only to justify torture. Dr. Mengele would be proud.

This memo can't be pinned on six or seven naive kids plucked out of their homes and families and unceremoniously dumped into the grotesque Iraqi funhouse of violence and sadism. This memo can't be dismissed as the musings of a mid-level bureaucrat. This memo was prepared by a committee appointed by the general counsel to the Defense Department, a man who worked closely with neocon criminal Doug Feith to subvert protections against the U.S. torture of detainees, and the conclusions in the memorandum neatly rationalize the very interrogation abuses that came to pass at Abu Ghraib.

This memorandum is the scandal. This memorandum is what should send a shiver down the spine of every American. It's time to stop feeling smug about ourselves and realize that there is no system, no form of government, no constitution that guarantees against the defiling of a nation by its own leaders. There is only the dedication of the people to constitutional and democratic principles that can defend against the criminality of its leaders. And this is what is so scary. Because it is already apparent that a substantial portion of the American people are willing to throw all of our principles and freedoms into the fucking toilet the moment an unprincipled administration shouts "terrorism."