Mr. Sullivan, in his book review, noted that:
...Bush clearly leaned toward toughness. Here's the precise formulation he used: ''As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.'' (emphasis in original)
Notice the qualifications. The president wants to stay not within the letter of the law, but within its broad principles, and in the last resort, ''military necessity'' can overrule all of it. According to his legal counsel at the time, Alberto R. Gonzales, the president's warmaking powers gave him ultimate constitutional authority to ignore any relevant laws in the conduct of the conflict. Sticking to the Geneva Convention was the exclusive prerogative of one man, George W. Bush; and he could, if he wished, make exceptions. As Assistant Attorney General Jay S. Bybee argues in another memo: ''Any effort to apply Section 2340A in a manner that interferes with the president's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.'' (Section 2340A refers to the United States law that incorporates the international Convention Against Torture.)
The president's underlings got the mixed message.
But was the message mixed, after all? Or were there, instead, two messages? ONe for public consumption, one for covert action. Is this, in other words, a matter where yet another Administration wanted to exercise "plausible deniability."
Those ACLU documents are already producing evidence of the latter, or at least reasons to raise the question. From Dan Froomkin, today:
There's a string of redacted e-mails in the file on [on particular torture] case in which military officials discuss the White House's interest.
One officer writes to another: "Any update? I realize you are doing your best; however MOI [Ministry of Interior] guys are under a lot of pressure from the White House. . . . Any information you have on progress would help placate those that are seeking the answers and keep the pressure off us."
The other officer asks: "When you say White House, what exactly are you referring to?"
The first officer replies: "When I say the White House, I mean that this request is being handled by the President's personal staff. This request was forwarded to the President from Prime Minister [redacted]'s office. [Redacted] Special Assistant [redacted] has taken a personal interest in this woman and her case."
But that investigation, like the others, did not result in any criminal charges. I wonder if Special Assistant [redacted] ever mentioned that to anyone higher in the chain of command.