WASHINGTON — WASHINGTON - The prisoner abuse scandal continues to shadow the Bush administration, with the latest reports that American military intelligence officers approved the use of barking, snarling dogs to intimidate inmates in Iraq in contravention of international law against torture.
President Bush was quick to insist during his Sea Island, Ga., summit with world leaders that he had ordered that "anything we did would conform to U.S. law and would be consistent with international treaty obligations."
But two administration papers on the permissible use of torture, one a memo from the Justice Department in August 2002 and another a Pentagon lawyers' report on it in March 2003, have raised the notion that a president's constitutional role as commander in chief could empower him to override international laws prohibiting prisoner torture.
The Pentagon report on "exceptional interrogations" of prisoners observed: "In order to respect the president's inherent constitutional authority to manage a military campaign, [the bar on torture] must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority."
That seemed a convoluted way of saying that in wartime, anything goes so long as it is done in the name of the president's supreme military position. Appearing at a Senate hearing the other day, Attorney General John Ashcroft ran into a buzz saw of Democratic criticism when he flatly rejected Sen. Edward M. Kennedy's demand that he turn over the memo. Instead, he assured the senators that Mr. Bush had no intention of allowing such an attitude as expressed in the memo govern prisoner interrogations.
The Democrats clearly think they have another hammer with which to beat the Bush administration on the prison abuse scandal in Iraq that has become the president's latest albatross. But a claim of open-ended presidential power in matters of war is not new.
Nearly a year before Mr. Bush launched his pre-emptive invasion of Iraq, Democratic Sen. Russell D. Feingold of Wisconsin held a sparsely attended, little-noticed hearing on the power to declare war, summoning a panel of prominent academics.
A consensus view from Georgetown law Professor Jane E. Stromseth held that the Constitution gave Congress alone that power under Article I, Section 8. The reason, she said, was "because the founders believed such a significant decision should be made not by one person, but by the legislature as a whole, to ensure careful deliberation by the people's elected representatives and broad national support before the country embarked on a course so full of risks."
A dissenting view, however, came from then Deputy Assistant Attorney General John Yoo. He cited Article II, Section 2 of the Constitution, which names the president as "commander in chief of the Army and Navy," saying it gives him "the constitutional authority to introduce U.S. armed forces into hostilities, when appropriate, with or without specific congressional authorization."
That is an opinion, indeed, that has been used to justify numerous undeclared wars, large and small, in the last half-century. But the extension suggested in these memos that a wartime president therefore can override international laws such as the Geneva Conventions is a blueprint for the sort of presidential arrogance that got the United States into Iraq in the first place.
At the Sea Island summit, several European leaders conspicuously hostile to Mr. Bush's invasion of Iraq and subsequent other snubs of the United Nations said they saw a welcome shift in Mr. Bush's manner, away from unilateralism and toward greater consultation with his U.N. partners. German Chancellor Gerhard Schroeder said, for example, "There has been a remarkable change in the American foreign policy."
But if the highest levels of this administration buy into the interpretation that the president's constitutional role as commander in chief gives him license to do whatever he pleases in wartime, the American public may have more to worry about than it realizes.
Jules Witcover writes from The Sun's Washington bureau. His column appears Mondays, Wednesdays and Fridays.