I'm not claiming this. The Army is. Marty Lederman explains:
Today's Army charge under UCMJ Article 93 against Lt. Col Steven L. Jordan, [a military intelligence officer who was second-in-command of interrogation operations at Abu Ghraib prison in Iraq] - for conduct that the SecDef actually authorized as to some detainees - demonstrates that Rumsfeld approved of, and encouraged, violations of the criminal law...
If the conduct at issue is so clearly unlawful, why did Haynes and Rumsfeld think that it could be approved? The answer to this question lies, I think, in the final DoD Working Group Report of April 4, 2003, which acknowledges that assault, cruelty, and maltreatment are offenses under the UCMJ, but which ominously adds, in a subsection heading, that there are "legal doctrines [that] could render specific conduct, otherwise criminal, not unlawful." The text refers to a "discussion of Commander-in-Chief authority, supra."
Don't you love that phrase: "legal doctrines [that] could render specific conduct, otherwise criminal, not unlawful"? If president Clinton had used such terminology abut sex, can you imagine how the Republicans would have torn him apart? And yet George W. Bush has used it about criminal abuse of military detainees.
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