Argument: US President has sole discretion on enhanced interrogations

Issue Report: Enhanced interrogation techniques


US Department of Justice Memo, March 14, 2003, justifying enhanced interrogation techniques – “In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy. See, e.g., Flanigan Memorandum at 3; Memorandum for Charles W. Colson, Special Counsel to the President, from William H. .Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970).8 The President’s complete discretion in exercising the Commander-in..:Chief power has been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that whether the President “in fulfilling his duties as Commander in Chief’ had appropriately responded to the rebellion of the southern states was a question “to be decided by him” and which the Coun could not question, but must leave to “the political department of the Government to which this power was entrusted.” See a/so Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874) (by virtue of the Commander-in-Chief Clause, it is the President aione[] who is constitutionally invested with the entire charge ofhostile operations.”).

One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members ofthe enemy. See, e.g., Memorandum for WilliamJ. Haynes II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations at 3 (Mar. 13, 2002) (“Transfers . Memorandum”) (the Commander-in-Chief Clause .constitutes an independent grant of “Substantive authority to engage in the detention and transfer of prisoners captured in armed conflicts”). Itis well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws ofwar make clear that prisoners may be interrogated for information concerning the enemy, its strength, and its plans.. Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants during virtually every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. Recognizing this authority, Congress has never attempted to restrict or interfere with the President’s authority on this score.”