Updated June 28, 2004








Legalizing Torture

Legalizing Torture

White House Lawyers Sought Legal Loopholes to Permit Abuse


By Fred Lingel


Disturbing 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 torture.

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 specific intent”;

• “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