is the Gonzales-Federalist Society claim that the Unitary Executive can do anything in times of war. This is bullshit.
http://www.washingtonpost.com/ac2/wp-dyn/A48446-2005Jan4?language=printerGonzales Helped Set the Course for Detainees
Justice Nominee's Hearings Likely to Focus on Interrogation Policies
By R. Jeffrey Smith and Dan Eggen
Washington Post Staff Writers
Wednesday, January 5, 2005; Page A01
Gonzales's involvement in the crafting of the torture memo, and his work on two presidential orders on detainee policy that provoked controversy or judicial censure during Bush's first term, is expected to take center stage at Senate Judiciary Committee hearings tomorrow on Gonzales's nomination to become attorney general.
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Gonzales, after reviewing a legal brief from the Justice Department's Office of Legal Counsel, advised Bush verbally on Jan. 18, 2002, that he had authority to exempt the detainees from such protections. Bush agreed, reversing a decades-old policy aimed in part at ensuring equal treatment for U.S. military detainees around the world. Rumsfeld issued an order the next day to commanders that detainees would receive such protections only "to the extent appropriate and consistent with military necessity."
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Drafted at the request of the CIA, which sought legal blessing for aggressive interrogation methods for Abu Zubaida and other al Qaeda detainees, the memo contended that only physically punishing acts "of an extreme nature" would be prosecutable. It also said that those committing torture with express presidential authority or without the intent to commit harm were probably immune from prosecution.
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The memo defined torture in extreme terms, said the president had inherent powers to allow it and gave the CIA permission to do what it wished. Seven months later, its conclusions were cited approvingly in a Defense Department memo that spelled out the Pentagon's policy for "exceptional interrogations" of detainees at Guantanamo Bay, Cuba.
Before 9-11 "changed everything" and unleashed the Unitary Executive on an unsuspecting nation, the law of the land was:
http://www.hrw.org/english/docs/2004/05/24/usint8614.htmHUMAN RIGHTS WATCH
Summary of International and U.S. Law Prohibiting Torture and Other Ill-treatment of Persons in Custody
Last Updated May 24, 2004
International and U.S. law prohibits torture and other ill-treatment of any person in custody in all circumstances. The prohibition applies to the United States during times of peace, armed conflict, or a state of emergency. Any person, whether a U.S. national or a non-citizen, is protected. It is irrelevant whether the detainee is determined to be a prisoner-of-war, a protected person, or a so-called “security detainee” or “unlawful combatant.” And the prohibition is in effect within the territory of the United States or any place anywhere U.S. authorities have control over a person. In short, the prohibition against torture and ill-treatment is absolute. ...
Article 3 prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …outrages upon personal dignity, in particular humiliating and degrading treatment.”