mmmmmmmm....nice lawyers working for Bush....
Lawyers Decided Bans on Torture Didn't Bind Bush
June 8, 2004
By NEIL A. LEWIS and ERIC SCHMITT
WASHINGTON, June 7 - A team of administration lawyers
concluded in a March 2003 legal memorandum that President
Bush was not bound by either an international treaty
prohibiting torture or by a federal antitorture law because
he had the authority as commander in chief to approve any
technique needed to protect the nation's security.
The memo, prepared for Defense Secretary Donald H.
Rumsfeld, also said that any executive branch officials,
including those in the military, could be immune from
domestic and international prohibitions against torture for
a variety of reasons.
One reason, the lawyers said, would be if military
personnel believed that they were acting on orders from
superiors "except where the conduct goes so far as to be
patently unlawful."
"In order to respect the president's inherent
constitutional authority to manage a military campaign,"
the lawyers wrote in the 56-page confidential memorandum,
the prohibition against torture "must be construed as
inapplicable to interrogation undertaken pursuant to his
commander-in-chief authority."
Senior Pentagon officials on Monday sought to minimize the
significance of the March memo, one of several obtained by
The New York Times, as an interim legal analysis that had
no effect on revised interrogation procedures that Mr.
Rumsfeld approved in April 2003 for the American military
prison at Guantánamo Bay, Cuba.
"The April document was about interrogation techniques and
procedures," said Lawrence Di Rita, the Pentagon's chief
spokesman. "It was not a legal analysis."
Mr. Di Rita said the 24 interrogation procedures permitted
at Guantánamo, four of which required Mr. Rumsfeld's
explicit approval, did not constitute torture and were
consistent with international treaties.
The March memorandum, which was first reported by The Wall
Street Journal on Monday, is the latest internal legal
study to be disclosed that shows that after the Sept. 11
terrorist attacks the administration's lawyers were set to
work to find legal arguments to avoid restrictions imposed
by international and American law.
A Jan. 22, 2002, memorandum from the Justice Department
that provided arguments to keep American officials from
being charged with war crimes for the way prisoners were
detained and interrogated was used extensively as a basis
for the March memorandum on avoiding proscriptions against
torture.
The previously disclosed Justice Department memorandum
concluded that administration officials were justified in
asserting that the Geneva Conventions did not apply to
detainees from the Afghanistan war.
Another memorandum obtained by The Times indicates that
most of the administration's top lawyers, with the
exception of those at the State Department and the Joint
Chiefs of Staff, approved of the Justice Department's
position that the Geneva Conventions did not apply to the
war in Afghanistan. In addition, that memorandum, dated
Feb. 2, 2002, noted that lawyers for the Central
Intelligence Agency had asked for an explicit understanding
that the administration's public pledge to abide by the
spirit of the conventions did not apply to its operatives.
The March memo, a copy of which was obtained by The Times,
was prepared as part of a review of interrogation
techniques by a working group appointed by the Defense
Department's general counsel, William J. Haynes. The group
itself was led by the Air Force general counsel, Mary
Walker, and included military and civilian lawyers from all
branches of the armed services.
The review stemmed from concerns raised by Pentagon lawyers
and interrogators at Guantánamo after Mr. Rumsfeld approved
a set of harsher interrogation techniques in December 2002
to use on a Saudi detainee, Mohamed al-Kahtani, who was
believed to be the planned 20th hijacker in the Sept. 11
terror plot.
Mr. Rumsfeld suspended the harsher techniques, including
serving the detainee cold, prepackaged food instead of hot
rations and shaving off his facial hair, on Jan. 12,
pending the outcome of the working group's review. Gen.
James T. Hill, head of the military's Southern Command,
which oversees Guantánamo, told reporters last Friday that
the working group "wanted to do what is humane and what is
legal and consistent not only with" the Geneva Conventions,
but also "what is right for our soldiers."
Mr. Di Rita said that the Pentagon officials were focused
primarily on the interrogation techniques, and that the
legal rationale included in the March memo was mostly
prepared by the Justice Department and White House
counsel's office.
The memo showed that not only lawyers from the Defense and
Justice departments and the White House approved of the
policy but also that David S. Addington, the counsel to
Vice President Dick Cheney, also was involved in the
deliberations. The State Department lawyer, William H. Taft
IV, dissented, warning that such a position would weaken
the protections of the Geneva Conventions for American
troops.
The March 6 document about torture provides tightly
constructed definitions of torture. For example, if an
interrogator "knows that severe pain will result from his
actions, if causing such harm is not his objective, he
lacks the requisite specific intent even though the
defendant did not act in good faith," the report said.
"Instead, a defendant is guilty of torture only if he acts
with the express purpose of inflicting severe pain or
suffering on a person within his control."
The adjective "severe," the report said, "makes plain that
the infliction of pain or suffering per se, whether it is
physical or mental, is insufficient to amount to torture.
Instead, the text provides that pain or suffering must be
`severe.' " The report also advised that if an interrogator
"has a good faith belief his actions will not result in
prolonged mental harm, he lacks the mental state necessary
for his actions to constitute torture."
The report also said that interrogators could justify
breaching laws or treaties by invoking the doctrine of
necessity. An interrogator using techniques that cause harm
might be immune from liability if he "believed at the
moment that his act is necessary and designed to avoid
greater harm."
Scott Horton, the former head of the human rights committee
of the Association of the Bar of the City of New York, said
Monday that he believed that the March memorandum on
avoiding responsibility for torture was what caused a
delegation of military lawyers to visit him and complain
privately about the administration's confidential legal
arguments. That visit, he said, resulted in the association
undertaking a study and issuing of a report criticizing the
administration. He added that the lawyers who drafted the
torture memo in March could face professional sanctions.
Jamie Fellner, the director of United States programs for
Human Rights Watch, said Monday, "We believe that this memo
shows that at the highest levels of the Pentagon there was
an interest in using torture as well as a desire to evade
the criminal consequences of doing so."
The March memorandum also contains a curious section in
which the lawyers argued that any torture committed at
Guantánamo would not be a violation of the anti-torture
statute because the base was under American legal
jurisdiction and the statute concerns only torture
committed overseas. That view is in direct conflict with
the position the administration has taken in the Supreme
Court, where it has argued that prisoners at Guantánamo Bay
are not entitled to constitutional protections because the
base is outside American jurisdiction.
Kate Zernike contributed reporting for this article.
nytimes.com |
