[Vision2020] 06-08-04 Washington Post: Memo Offered Justification for Use of Torture

Art Deco aka W. Fox deco@moscow.com
Tue, 8 Jun 2004 07:18:57 -0700


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washingtonpost.com
Memo Offered Justification for Use of Torture
Justice Dept. Gave Advice in 2002

By Dana Priest and R. Jeffrey Smith
Washington Post Staff Writers
Tuesday, June 8, 2004; Page A01


In August 2002, the Justice Department advised the White House that torturing al
Qaeda terrorists in captivity abroad "may be justified," and that international
laws against torture "may be unconstitutional if applied to interrogations"
conducted in President Bush's war on terrorism, according to a newly obtained
memo.

If a government employee were to torture a suspect in captivity, "he would be
doing so in order to prevent further attacks on the United States by the Al
Qaeda terrorist network," said the memo, from the Justice Department's office of
legal counsel, written in response to a CIA request for legal guidance. It added
that arguments centering on "necessity and self-defense could provide
justifications that would eliminate any criminal liability" later.

The memo seems to counter the pre-Sept. 11, 2001, assumption that U.S.
government personnel would never be permitted to torture captives. It was
offered after the CIA began detaining and interrogating suspected al Qaeda
leaders in Afghanistan and elsewhere in the wake of the attacks, according to
government officials familiar with the document.

The legal reasoning in the 2002 memo, which covered treatment of al Qaeda
detainees in CIA custody, was later used in a March 2003 report by Pentagon
lawyers assessing interrogation rules governing the Defense Department's
detention center at Guantanamo Bay, Cuba. At that time, Defense Secretary Donald
H. Rumsfeld had asked the lawyers to examine the logistical, policy and legal
issues associated with interrogation techniques.

Bush administration officials say flatly that, despite the discussion of legal
issues in the two memos, it has abided by international conventions barring
torture, and that detainees at Guantanamo and elsewhere have been treated
humanely, except in the cases of abuse at Abu Ghraib prison in Iraq for which
seven military police soldiers have been charged.

Still, the 2002 and 2003 memos reflect the Bush administration's desire to
explore the limits on how far it could legally go in aggressively interrogating
foreigners suspected of terrorism or of having information that could thwart
future attacks.

In the 2002 memo, written for the CIA and addressed to White House Counsel
Alberto R. Gonzales, the Justice Department defined torture in a much narrower
way, for example, than does the U.S. Army, which has historically carried out
most wartime interrogations.

In the Justice Department's view -- contained in a 50-page document signed by
Assistant Attorney General Jay S. Bybee and obtained by The Washington Post -- 
inflicting moderate or fleeting pain does not necessarily constitute torture.
Torture, the memo says, "must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of
bodily function, or even death."

By contrast, the Army's Field Manual 34-52, titled "Intelligence
Interrogations," sets more restrictive rules. For example, the Army prohibits
pain induced by chemicals or bondage; forcing an individual to stand, sit or
kneel in abnormal positions for prolonged periods of time; and food deprivation.
Under mental torture, the Army prohibits mock executions, sleep deprivation and
chemically induced psychosis.

Human rights groups expressed dismay at the Justice Department's legal reasoning
yesterday.

"It is by leaps and bounds the worst thing I've seen since this whole Abu Ghraib
scandal broke," said Tom Malinowski of Human Rights Watch. "It appears that what
they were contemplating was the commission of war crimes and looking for ways to
avoid legal accountability. The effect is to throw out years of military
doctrine and standards on interrogations."

But a spokesman for the White House counsel's office said, "The president
directed the military to treat al Qaeda and Taliban humanely and consistent with
the Geneva Conventions."

Mark Corallo, the Justice Department's chief spokesman, said "the department
does not comment on specific legal advice it has provided confidentially within
the executive branch." But he added: "It is the policy of the United States to
comply with all U.S. laws in the treatment of detainees -- including the
Constitution, federal statutes and treaties." The CIA declined to comment.

The Justice Department's interpretation for the CIA sought to provide guidance
on what sorts of aggressive treatments might not fall within the legal
definition of torture.

The 2002 memo, for example, included the interpretation that "it is difficult to
take a specific act out of context and conclude that the act in isolation would
constitute torture." The memo named seven techniques that courts have considered
torture, including severe beatings with truncheons and clubs, threats of
imminent death, burning with cigarettes, electric shocks to genitalia, rape or
sexual assault, and forcing a prisoner to watch the torture of another person.

"While we cannot say with certainty that acts falling short of these seven would
not constitute torture," the memo advised, ". . . we believe that interrogation
techniques would have to be similar to these in their extreme nature and in the
type of harm caused to violate law."

"For purely mental pain or suffering to amount to torture," the memo said, "it
must result in significant psychological harm of significant duration, e.g.,
lasting for months or even years." Examples include the development of mental
disorders, drug-induced dementia, "post traumatic stress disorder which can last
months or even years, or even chronic depression."

Of mental torture, however, an interrogator could show he acted in good faith by
"taking such steps as surveying professional literature, consulting with experts
or reviewing evidence gained in past experience" to show he or she did not
intend to cause severe mental pain and that the conduct, therefore, "would not
amount to the acts prohibited by the statute."

In 2003, the Defense Department conducted its own review of the limits that
govern torture, in consultation with experts at the Justice Department and other
agencies. The aim of the March 6, 2003, review, conducted by a working group
that included representatives of the military services, the Joint Chiefs of
Staff and the intelligence community, was to provide a legal basis for what the
group's report called "exceptional interrogations."

Much of the reasoning in the group's report and in the Justice Department's 2002
memo overlap. The documents, which address treatment of al Qaeda and Taliban
detainees, were not written to apply to detainees held in Iraq.

In a draft of the working group's report, for example, Pentagon lawyers
approvingly cited the Justice Department's 2002 position that domestic and
international laws prohibiting torture could be trumped by the president's
wartime authority and any directives he issued.

At the time, the Justice Department's legal analysis, however, shocked some of
the military lawyers who were involved in crafting the new guidelines, said
senior defense officials and military lawyers.

"Every flag JAG lodged complaints," said one senior Pentagon official involved
in the process, referring to the judge advocate generals who are military
lawyers of each service.

"It's really unprecedented. For almost 30 years we've taught the Geneva
Convention one way," said a senior military attorney. "Once you start telling
people it's okay to break the law, there's no telling where they might stop."

A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in
the world. But the Pentagon group's report, prepared under the supervision of
General Counsel William J. Haynes II, said that "in order to respect the
President's inherent constitutional authority to manage a military campaign . .
. [the prohibition against torture] must be construed as inapplicable to
interrogations undertaken pursuant to his Commander-in-Chief authority."

The Pentagon group's report, divulged yesterday by the Wall Street Journal and
obtained by The Post, said further that the 1994 law barring torture "does not
apply to the conduct of U.S. personnel" at Guantanamo Bay.

It also said the anti-torture law did apply to U.S. military interrogations that
occurred outside U.S. "maritime and territorial jurisdiction," such as in Iraq
or Afghanistan. But it said both Congress and the Justice Department would have
difficulty enforcing the law if U.S. military personnel could be shown to be
acting as a result of presidential orders.

The report then parsed at length the definition of torture under domestic and
international law, with an eye toward guiding military personnel about legal
defenses.

The Pentagon report uses language very similar to that in the 2002 Justice
Department memo written in response to the CIA's request: "If a government
defendant were to harm an enemy combatant during an interrogation in a manner
that might arguably violate criminal prohibition, he would be doing so in order
to prevent further attacks on the United States by the al Qaeda terrorist
network," the draft states. "In that case, DOJ [Department of Justice] believes
that he could argue that the executive branch's constitutional authority to
protect the nation from attack justified his actions."

The draft goes on to assert that a soldier's claim that he was following
"superior orders" would be available for those engaged in "exceptional
interrogations except where the conduct goes so far as to be patently unlawful."
It asserts, as does the Justice view expressed for the CIA, that the mere
infliction of pain and suffering is not unlawful; the pain or suffering must be
severe.

A Defense Department spokesman said last night that the March 2003 memo
represented "a scholarly effort to define the perimeters of the law" but added:
"What is legal and what is put into practice is a different story." Pentagon
officials said the group examined at least 35 interrogation techniques, and
Rumsfeld later approved using 24 of them in a classified directive on April 16,
2003, that governed all activities at Guantanamo Bay. The Pentagon has refused
to make public the 24 interrogation procedures.

Staff writer Josh White contributed to this report.



© 2004 The Washington Post Company




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<P><FONT size=3D+2><B>Memo Offered Justification for Use of =
Torture</B></FONT>=20
<BR>Justice Dept. Gave Advice in 2002=20
<P><FONT size=3D-1>By Dana Priest and R. Jeffrey Smith<BR>Washington =
Post Staff=20
Writers<BR>Tuesday, June 8, 2004; Page A01 </FONT>
<P><NITF>
<P>In August 2002, the Justice Department advised the White House that =
torturing=20
al Qaeda terrorists in captivity abroad "may be justified," and that=20
international laws against torture "may be unconstitutional if applied =
to=20
interrogations" conducted in President Bush's war on terrorism, =
according to a=20
newly obtained memo.</P>
<P>If a government employee were to torture a suspect in captivity, "he =
would be=20
doing so in order to prevent further attacks on the United States by the =
Al=20
Qaeda terrorist network," said the memo, from the Justice Department's =
office of=20
legal counsel, written in response to a CIA request for legal guidance. =
It added=20
that arguments centering on "necessity and self-defense could provide=20
justifications that would eliminate any criminal liability" later.</P>
<P>The memo seems to counter the pre-Sept. 11, 2001, assumption that =
U.S.=20
government personnel would never be permitted to torture captives. It =
was=20
offered after the CIA began detaining and interrogating suspected al =
Qaeda=20
leaders in Afghanistan and elsewhere in the wake of the attacks, =
according to=20
government officials familiar with the document.</P>
<P>The legal reasoning in the 2002 memo, which covered treatment of al =
Qaeda=20
detainees in CIA custody, was later used in a March 2003 report by =
Pentagon=20
lawyers assessing interrogation rules governing the Defense Department's =

detention center at Guantanamo Bay, Cuba. At that time, Defense =
Secretary Donald=20
H. Rumsfeld had asked the lawyers to examine the logistical, policy and =
legal=20
issues associated with interrogation techniques.</P>
<P>Bush administration officials say flatly that, despite the discussion =
of=20
legal issues in the two memos, it has abided by international =
conventions=20
barring torture, and that detainees at Guantanamo and elsewhere have =
been=20
treated humanely, except in the cases of abuse at Abu Ghraib prison in =
Iraq for=20
which seven military police soldiers have been charged.</P>
<P>Still, the 2002 and 2003 memos reflect the Bush administration's =
desire to=20
explore the limits on how far it could legally go in aggressively =
interrogating=20
foreigners suspected of terrorism or of having information that could =
thwart=20
future attacks.</P>
<P>In the 2002 memo, written for the CIA and addressed to White House =
Counsel=20
Alberto R. Gonzales, the Justice Department defined torture in a much =
narrower=20
way, for example, than does the U.S. Army, which has historically =
carried out=20
most wartime interrogations.</P>
<P>In the Justice Department's view -- contained in a 50-page document =
signed by=20
Assistant Attorney General Jay S. Bybee and obtained by The Washington =
Post --=20
inflicting moderate or fleeting pain does not necessarily constitute =
torture.=20
Torture, the memo says, "must be equivalent in intensity to the pain=20
accompanying serious physical injury, such as organ failure, impairment =
of=20
bodily function, or even death."</P>
<P>By contrast, the Army's Field Manual 34-52, titled "Intelligence=20
Interrogations," sets more restrictive rules. For example, the Army =
prohibits=20
pain induced by chemicals or bondage; forcing an individual to stand, =
sit or=20
kneel in abnormal positions for prolonged periods of time; and food =
deprivation.=20
Under mental torture, the Army prohibits mock executions, sleep =
deprivation and=20
chemically induced psychosis.</P>
<P>Human rights groups expressed dismay at the Justice Department's =
legal=20
reasoning yesterday.</P>
<P>"It is by leaps and bounds the worst thing I've seen since this whole =
Abu=20
Ghraib scandal broke," said Tom Malinowski of Human Rights Watch. "It =
appears=20
that what they were contemplating was the commission of war crimes and =
looking=20
for ways to avoid legal accountability. The effect is to throw out years =
of=20
military doctrine and standards on interrogations."</P>
<P>But a spokesman for the White House counsel's office said, "The =
president=20
directed the military to treat al Qaeda and Taliban humanely and =
consistent with=20
the Geneva Conventions."</P>
<P>Mark Corallo, the Justice Department's chief spokesman, said "the =
department=20
does not comment on specific legal advice it has provided confidentially =
within=20
the executive branch." But he added: "It is the policy of the United =
States to=20
comply with all U.S. laws in the treatment of detainees -- including the =

Constitution, federal statutes and treaties." The CIA declined to =
comment.</P>
<P>The Justice Department's interpretation for the CIA sought to provide =

guidance on what sorts of aggressive treatments might not fall within =
the legal=20
definition of torture.</P>
<P>The 2002 memo, for example, included the interpretation that "it is =
difficult=20
to take a specific act out of context and conclude that the act in =
isolation=20
would constitute torture." The memo named seven techniques that courts =
have=20
considered torture, including severe beatings with truncheons and clubs, =
threats=20
of imminent death, burning with cigarettes, electric shocks to =
genitalia, rape=20
or sexual assault, and forcing a prisoner to watch the torture of =
another=20
person.</P>
<P>"While we cannot say with certainty that acts falling short of these =
seven=20
would not constitute torture," the memo advised, ". . . we believe that=20
interrogation techniques would have to be similar to these in their =
extreme=20
nature and in the type of harm caused to violate law."</P>
<P>"For purely mental pain or suffering to amount to torture," the memo =
said,=20
"it must result in significant psychological harm of significant =
duration, e.g.,=20
lasting for months or even years." Examples include the development of =
mental=20
disorders, drug-induced dementia, "post traumatic stress disorder which =
can last=20
months or even years, or even chronic depression."</P>
<P>Of mental torture, however, an interrogator could show he acted in =
good faith=20
by "taking such steps as surveying professional literature, consulting =
with=20
experts or reviewing evidence gained in past experience" to show he or =
she did=20
not intend to cause severe mental pain and that the conduct, therefore, =
"would=20
not amount to the acts prohibited by the statute."</P>
<P>In 2003, the Defense Department conducted its own review of the =
limits that=20
govern torture, in consultation with experts at the Justice Department =
and other=20
agencies. The aim of the March 6, 2003, review, conducted by a working =
group=20
that included representatives of the military services, the Joint Chiefs =
of=20
Staff and the intelligence community, was to provide a legal basis for =
what the=20
group's report called "exceptional interrogations."</P>
<P>Much of the reasoning in the group's report and in the Justice =
Department's=20
2002 memo overlap. The documents, which address treatment of al Qaeda =
and=20
Taliban detainees, were not written to apply to detainees held in =
Iraq.</P>
<P>In a draft of the working group's report, for example, Pentagon =
lawyers=20
approvingly cited the Justice Department's 2002 position that domestic =
and=20
international laws prohibiting torture could be trumped by the =
president's=20
wartime authority and any directives he issued.</P>
<P>At the time, the Justice Department's legal analysis, however, =
shocked some=20
of the military lawyers who were involved in crafting the new =
guidelines, said=20
senior defense officials and military lawyers.</P>
<P>"Every flag JAG lodged complaints," said one senior Pentagon official =

involved in the process, referring to the judge advocate generals who =
are=20
military lawyers of each service.</P>
<P>"It's really unprecedented. For almost 30 years we've taught the =
Geneva=20
Convention one way," said a senior military attorney. "Once you start =
telling=20
people it's okay to break the law, there's no telling where they might=20
stop."</P>
<P>A U.S. law enacted in 1994 bars torture by U.S. military personnel =
anywhere=20
in the world. But the Pentagon group's report, prepared under the =
supervision of=20
General Counsel William J. Haynes II, said that "in order to respect the =

President's inherent constitutional authority to manage a military =
campaign . .=20
. [the prohibition against torture] must be construed as inapplicable to =

interrogations undertaken pursuant to his Commander-in-Chief =
authority."</P>
<P>The Pentagon group's report, divulged yesterday by the Wall Street =
Journal=20
and obtained by The Post, said further that the 1994 law barring torture =
"does=20
not apply to the conduct of U.S. personnel" at Guantanamo Bay.</P>
<P>It also said the anti-torture law did apply to U.S. military =
interrogations=20
that occurred outside U.S. "maritime and territorial jurisdiction," such =
as in=20
Iraq or Afghanistan. But it said both Congress and the Justice =
Department would=20
have difficulty enforcing the law if U.S. military personnel could be =
shown to=20
be acting as a result of presidential orders.</P>
<P>The report then parsed at length the definition of torture under =
domestic and=20
international law, with an eye toward guiding military personnel about =
legal=20
defenses.</P>
<P>The Pentagon report uses language very similar to that in the 2002 =
Justice=20
Department memo written in response to the CIA's request: "If a =
government=20
defendant were to harm an enemy combatant during an interrogation in a =
manner=20
that might arguably violate criminal prohibition, he would be doing so =
in order=20
to prevent further attacks on the United States by the al Qaeda =
terrorist=20
network," the draft states. "In that case, DOJ [Department of Justice] =
believes=20
that he could argue that the executive branch's constitutional authority =
to=20
protect the nation from attack justified his actions."</P>
<P>The draft goes on to assert that a soldier's claim that he was =
following=20
"superior orders" would be available for those engaged in "exceptional=20
interrogations except where the conduct goes so far as to be patently =
unlawful."=20
It asserts, as does the Justice view expressed for the CIA, that the =
mere=20
infliction of pain and suffering is not unlawful; the pain or suffering =
must be=20
severe. </P>
<P>A Defense Department spokesman said last night that the March 2003 =
memo=20
represented "a scholarly effort to define the perimeters of the law" but =
added:=20
"What is legal and what is put into practice is a different story." =
Pentagon=20
officials said the group examined at least 35 interrogation techniques, =
and=20
Rumsfeld later approved using 24 of them in a classified directive on =
April 16,=20
2003, that governed all activities at Guantanamo Bay. The Pentagon has =
refused=20
to make public the 24 interrogation procedures.</P>
<P><I>Staff writer Josh White contributed to this report.</I> </P>
<P></P></NITF>
<P>
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