White House Lawyers Sought Legal Loopholes to Permit Abuse
evidence continues to emerge that the White House authorized a strategy to find
ways to circumvent international guidelines on the torture of detainees. As a
consequence, lawyers within the Justice Department, the Department of Defense
and the Pentagon suggested legal defenses for U.S. soldiers and interrogators
accused of torture and intentional homicide.
In two memos in 2002 and 2003, there was,
according to international rights bodies, a clear policy by the Bush
administration to find ways around the Geneva Conventions and to construct
legal defenses to allow for the inhuman and degrading treatment, as well as
torture of detainees.
On Jan. 25, 2002, White House Counsel Albert Gonzales
wrote to the president that the war on terror “renders obsolete” the Geneva
Conventions’ strict rules on the interrogation of enemy prisoners. Gonzales
warned of the dangers of U.S. military personnel facing future criminal
charges. In order to avoid such an eventuality, he told the president that the
Geneva Conventions should not be applied to Al Qaeda and Taliban prisoners.
By August 2002, a Justice Department memo, in response
to a CIA request for advice, stated that the torture of Al Qaeda operatives on
foreign soil “might be justified” because international conventions did not
apply to the war on terror.
In an incredible piece of “legalese,” it was
further stated that if mental torture of a detainee did not result in
psychological harm lasting months or years, it could not legally be defined as
The memo also pointed out that if a U.S.
government employee used torture, believing he was doing it to prevent future
attacks against this country, he could argue he was acting out of necessity or
self-defense. And the use of tactics that resulted in moderate or fleeting pain
could equally not be construed as torture.
The authors of the 2002 memo were clearly
determined to narrow the U.S. military’s own interrogation guidelines as well
as those enshrined in international codes. To do so, they offered legal loopholes
to protect interrogators.
They listed seven interrogation techniques defined
by law as torture, including rape, sexual abuse, burning with a cigarette,
imminent death threats, physical beating and forcing a detainee to witness
another detainee being tortured.
The memo’s authors, however, said that tactics
“falling short” of those listed would have to be “similar in nature,” and the
harm caused by them would have to be equally so, before they could even be
considered legal violations.
It was hardly surprising that a 49-page memo in
March 2003, entitled Working Group Report on Detainee Interrogations in the
Global War on Terror: Assessment of Legal, Historical Police and Operational
Considerations, followed the guidance and thought processes of the authors
of the 2002 memo. The 2003 document was drawn up by lawyers at the Defense
Department working in conjunction with colleagues at the Justice Department.
Guantanamo was very much on their minds, and they
advised that anti-torture laws did not apply to Gitmo or to “the conduct of
U.S. personnel at that facility.”
In the opening section of the document, classified
by Donald Rumsfeld, but acquired by a Washington newspaper, it is clearly
stated that the Geneva Conventions do not apply to Al Qaeda or Taliban
detainees and that the United States, while it ratified the 1994 Geneva Torture
Convention, “did so with a variety of reservations and understandings.”
The 2003 memo, like its 2002 counterpart,
reinforced the legal principle that international law did not apply to U.S.
personnel at Gitmo, but the most disturbing sections of the memo related to
ways in which interrogation tactics could be legally defended.
It was asserted that for a crime to be committed,
such as acute mental pain, an interrogator had to be shown to have had
“specific intent” and “express purpose” to break the law.
Even a cursory reading of the memo provides
evidence that its authors were adept at linguistic ambiguities and abstract,
legalistic paradoxes. They also cited obscure case law and statutes, as well as
published works and papers by psychiatrists and mental health specialists.
The examples below show the cunning of the memo’s
lawyers: how they compiled the memo and how they believed an interrogator could
argue that his behavior did not have specific intent to cause harm.
• “An individual acting with a good faith belief
that his conduct would not produce the result that the law prohibits, negates
• “A defendant must specifically intend to cause
prolonged mental harm for the defendant to have committed torture”;
• “Thus, if a defendant has a good faith belief
that his actions will not result in prolonged harm, he lacks the mental state
necessary for his actions to constitute torture.”
In a separate context within the memo, it is
argued that the use of mind-altering drugs is an acceptable procedure that
could not be construed as torture, provided an interrogator did not have a
“specific intent” to cause long-term harm to a detainee.
The memo dealt with what it saw as the limitation
of Congress to regulate the detention and interrogation of detainees:
Congress may no more regulate the president’s
ability to detain and interrogate enemy combatants than it may regulate his
ability to direct troop movements on a battlefield. . . . Any effort by
Congress to regulate the interrogations and detentions of unlawful combatants
would violate the constitution’s sole vesting of the Commander-in-Chief
authority in the president.
A much more controversial section presented a case
for what it called “the defense of necessity” to protect interrogators. Such a
defense would be one in which an interrogator argued that the evil or harm he
sought to prevent was greater than that which he inflicted.
Other legal avenues available to interrogators
included “self-defense” on the basis that an interrogator believed a terrorist crime
was about to be committed.
One of the closing paragraphs in the memo referred
to the right of an interrogator to claim that he had been acting under orders
from others higher up the chain of command.
Aside from these two memos, Congress wants to see other
documents, in particular a memo signed by Rumsfeld in which he authorized 24
interrogation techniques. Citing executive privilege, Attorney General John
Ashcroft has refused to release papers relating to interrogations and the
administration’s policy on torture.
The material so far unearthed and leaked to the
media indicates that, not only was a policy in place to circumvent
international law and U.S. military guidelines, but that a legal basis was
being offered for extending extreme interrogation tactics beyond Afghanistan
and Gitmo to Iraq and facilities like Abu Ghraib Prison in Baghdad.
The evidence so far provides a paper trail that
could eventually lead to the president and vice-president’s offices.
© American Free Press 2004