Condoleezza Rice Asserts a Nixonesque Defense That Nothing the President Ordered Could Be a War Crime

225px-condoleezza_rice_cropped225px-richard_nixonThere is an interesting exchange that has surfaced between a Stanford student and former Secretary of State Condoleezza Rice who is a Senior Fellow at the Hoover Institute at Stanford. The student confronted Rice about whether waterboarding is torture. She responded with a Nixonesque argument that, if the president ordered it, it cannot be a war crime. It sounds a lot like Nixon’s 1977 statement: “When the president does it, that means it is not illegal.” I discussed the Rice comment on this segment of Hardball.

Here is the exchange:

Q: Is waterboarding torture?

RICE: The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture. So that’s — And by the way, I didn’t authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department’s clearance. That’s what I did.

Q: Okay. Is waterboarding torture in your opinion?

RICE: I just said, the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.

The exchange is fascinating from a number of perspectives. First, it shows Rice desperately trying to fall into Obama’s ever-increasing group of exempted people “just following orders.” Her role, however, was significant in establishing the torture program. She had an independent responsibility to refuse to participate in a war crime.

Second, most war crimes involve officials who order them under the claim that they are perfectly legal. The Germans, Japanese, Serbians, and now the Bush Administration have made such claims.

Rice can certainly try to convince the world that waterboarding is not torture — an admittedly unlikely prospect. However, she can hardly portray herself as a messenger girl for the president with no independent judgment or responsibilities. The Senate Intelligence and Armed Forces Committees have released reports that show a much greater role by Rice than she has ever admitted.

Article II, Section 3 of the Convention Against Torture expressly states “An order from a superior officer or a public authority may not be invoked as a justification of torture.”

The fact is that Rice could do much better in studying the use of this defense by a professional, here.

For the video, click here and here.

46 thoughts on “Condoleezza Rice Asserts a Nixonesque Defense That Nothing the President Ordered Could Be a War Crime”

  1. David Corn over at MoJo says that a special prosecutor might not be the best way to approach prosecutions. He doesn’t provide much in the way of better suggestions though, and I also am not sure if I trust him or not, not a regular reader of his work.

    I can’t easily provide a link as I am getting there through a proxy (livin in China, this is one of the drawbacks).

    I am concerned that we game out how this should go down. As soon as investigations of some sort become all but assured, the game will turn to hampering and restricting them in order to affect the outcome, with a lot of disinformation.

    I hope Prof. Turley can propose a proper way to go about it. Or at least talk about the options available. IS a special prosecutor the way to go??

  2. AP Highlight in History:
    On May 1, 2003, President George W. Bush landed in a jet on the aircraft carrier USS Abraham Lincoln off the California coast and, in a speech to the nation, declared major combat in Iraq over.

    If I remember the banner stated:”Mission Accomplished”

    Now if it had only gone the way Geo the II, wanted it, we would not be having these issues.

  3. Proffesor this is how I saw your “smack down” of Pat Bucannan the other day on Hardball:

    Coming home from his Little League game, Pat swung open the front door very excited. Unable to attend the game, his father immediately wanted to know what happened. “So, how did you do son?” he asked.

    “You’ll never believe it!” Pat said. “I was responsible for the winning run!”

    “Really? How’d you do that?”

    “I dropped the ball.”

  4. M72: Thanks for the ‘cites’ and you win the bet.

    Mike Appleton: Thanks for your comments. I am amazed how extremely well educated lawyer who are corrupt. like Ms. Rice, always resort to the base lies that petty criminals spout in attempts to explain away their crimes. You would think attorneys would know better.

    JSJ: Yes, Ford did our country a disservice by pardoning Nixon. I have always opposed the pardon power given a president–the founders got that wrong bu giving the powers of a King to a one-man executive.

    Pat Buchanan is a very confused old man and Hardball Tweet is hard to watch with all of his inane interruptions.

    Professor Turley is a prince of a fellow.

    I am assisting an attorney with facts within 3 oppositions’ briefs but I needed a break.

  5. Condoleezza Rice will host the gala opening of the new School of Public Policy at the University of Calgary on May 13. Our puppet Prime Minster, who recently hired Ari Fleischer to help him out with media, seems to really dig the Bushies, and hence Tortuleezza’s $500 a plate nosh at his alma mater U of C. Please keep these monsters in your own country or ship them off to Spain or the Hague. War criminals are not wanted here..

  6. Sir just today Souter a GHWB appointee. However Stevens and Gingsberg are older and older than dirt. One of em walked with Moses in the sand and the other was around while it was still quartz.

    With the current make up of the court I don’t see how anything good could come out of an action against Bush et al. The irony would be for that to happen and the Spanish to indict them, and they claim Double Jeopardy.

    Sent from my windows based phone=

  7. Anon,
    Your comment about Reagan and BushI stacking the Court that makes me think of a theory that Obama may be taking his time to see if they can get another progressive named to the Supreme Court. Have any of the Supremes talked about leaving the court?

  8. Messpo727272,

    Nah, I have seen it before. When I did court appointments early on. I usually dropped those clients that alls they wanted to do was rat somebody out so they did not have to do any time.

    I had much more respect for those that were guilty and wanted to fight it and take there chances or wanted to minimize any exposure to jail/prison in stead of taking some body else down.

    One type of case that I did hate dealing with but it was easy money is when a drug deal went bad and “force and usually violence” was used to reacquaint themselves with the lost money. Made sense to me. But they usually got hit with armed or stronged armed robbery. I thought that the laws did not assist when 2 people were equally guilty. Lets see pari delicto?

  9. Anon:
    “With Cheney saying what he has said,Rice and Bybee are they really trying to hang ole Geo out or what. This reminds me of low level drug dealers willing to rat out someone so they can get a better deal. They realize they may get time but they don’t want to go down by themselves.”


    You find a remarkable similarity in the conduct of the guilty from Wall Street to State Street, to Pennsylvania Avenue to the back streets,when they are confronted by law enforcement. First, its denial, then avoidance, then the “I’ve got a story to tell, can I get a deal?” I bet FFLeo will back be up on this.

  10. Messpo727272,

    I clearly see that what has been evolving with this administration is that the line of separation of powers has gotten blurred. It appears that administration has everyone in its pockets or at least it hands in there pockets. With the way Bush was able to get top democrats vending his agenda it blurred Article 1 and 2. With the way that the Sct was packed by Regan and George the First it cinched the stolen election for George the Second.

    I think what I see for Obama and Holder is maybe yes, they want to go after Bush et al. And if they do it Appeals will run up the flag pole to the Sct. So Obamas hands may be proverbially tied. Yes, I would like right now to have Cheney hung, by ropes where a stand snapped about every 2 to 3 minutes apart, so that he could hear them and when the last stand snapped he would land into a heard of ravenous coyotes. However that may be too good for him.

    With Cheney saying what he has said,Rice and Bybee are they really trying to hang ole Geo out or what. This reminds me of low level drug dealers willing to rat out someone so they can get a better deal. They realize they may get time but they don’t want to go down by themselves.

  11. rcampbell:

    Nice pick up on Pat Buchanan’s utter ignorance of the law and history. For one thing, the Constitution specifically permits suspension of the writ of Habeas Corpus in wartime*, though Lincoln clearly was wrong in not going to Congress for the authorization. Ex Parte Merryman, 17 F. Cas. 144 (1861). Congress later authorized Lincoln’s actions by passing the Habeas Corpus Act of 1863. The Supreme Court then restored Habeas Corpus in Ex parte Milligan, 71 U.S. 2 (1866). US v. Nixon (cited supra) settled forever the “President as King” argument advanced by neo-Nixonians like Bush and Condi.

    *Article I, Section 9 of the Constitution says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

  12. “From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.

    This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it.”

    –Excerpted from The Federalist Papers No. 47

  13. I swear that I just woke up from a 30+ year coma after reading that quote from Rice. This is evidence that Holder must investigate and prosecute because of this arrogance. I have always wondered what her real relationship was with Bush. Jill was right when she said they are turning on each other. The jackals are circling the carcass now.

  14. “Notwithstanding the deference each branch must accord the others, the “judicial Power of the United States” vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed. [418 U.S. 683, 705] 1938). We therefore reaffirm that it is the province and duty of this Court “to say what the law is” with respect to the claim of privilege presented in this case. Marbury v. Madison, supra, at 177.”

    –United States v. Nixon

    Right you are Professor Turley, the right to say what the law is resides at One First Street, NE, not 1600 Pennsylvania Ave. Oyez, oyez! Thought Dr. Rice might know that, but why would a “know-nothing” know anything.

  15. “The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.” — James D. St. Clair, Richard Nixon’s counsel, arguing before the Supreme Court

  16. Former Dem aka Troll,

    I will say, you are a pleasure to have. This only solidifies my views. Because if you are for it, it implicitly has me questioning the person you are commending. I thank you for your thoughts.

  17. Brilliant performance, JT! You now join my list of people (along with such distinguished pundits as Christopher Hitchens) that I enjoy watching floss idiots on primetime TV.

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