Lawyers Said Bush Not Bound by Torture Laws
After defining torture and other prohibited acts, the memo presents 'legal doctrines ... that could render specific conduct, otherwise criminal, not unlawful.' Foremost, the lawyers rely on the 'commander-in-chief authority,' concluding that 'without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority' to wage war. Moreover, 'any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the commander-in-chief authority in the president,' the lawyers advised.
Likewise, the lawyers found that 'constitutional principles' make it impossible to 'punish officials for aiding the president in exercising his exclusive constitutional authorities' and neither Congress nor the courts could 'require or implement the prosecution of such an individual.'
To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a 'presidential directive or other writing' that could serve as evidence, since authority to set aside the laws is 'inherent in the president.'
Godden v. Hales (1686)
We were satisfied in our judgments before and, having the concurrence of eleven out of twelve, we think we may very well declare the opinion of the court to be that the king may dispense in this case. And the judges go upon these grounds: � (1) that the kings of England are sovereign princes; (2) that the laws of England are the king's laws; (3) that therefore 'tis an inseparable prerogative in the kings of England to dispense with penal laws in particular cases and upon particular necessary reasons; (4) that of those reasons and those necessities, the king himself is sole judge; and then, which is consequent upon all, (5) that this is not a trust invested in, or granted to, the king by the people, but the ancient remains of the sovereign power and prerogative of the kings of England; which never yet was taken from them, nor can be. And therefore, such a dispensation appearing upon record to come [in] time enough to save him from the forfeiture, judgment ought to be given for the defendant.
English Bill of Rights 1689
2 That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
An order from a superior officer or a public authority may not be invoked as a justification of torture.
Beyond all this, is it not a tad strange that a government which insists torture is the act of a few bad apples has quite such detailed legal advice on how to avoid being punished for the use of torture?