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Published on Monday, June 7, 2004 by the Wall Street Journal
Pentagon Report Set Framework For Use of Torture
Security or Legal Factors Could Trump Restrictions, Memo to Rumsfeld
Argued
by Jess Bravin
 
Bush administration lawyers contended last year that the president
wasn't bound by laws prohibiting torture and that government agents
who might torture prisoners at his direction couldn't be prosecuted by
the Justice Department.
The advice was part of a classified report on interrogation methods
prepared for Defense Secretary Donald Rumsfeld after commanders at
Guantanamo Bay, Cuba, complained in late 2002 that with conventional
methods they weren't getting enough information from prisoners.
Critics who have seen the draft report said it undercuts the
administration's claims that it recognized a duty to treat prisoners
humanely. The "claim that the president's commander-in-chief power
includes the authority to use torture should be unheard of in this day
and age," said Michael Ratner, president of the Center for
Constitutional Rights, a New York advocacy group that has filed
lawsuits against U.S. detention policies. "Can one imagine the
reaction if those on trial for atrocities in the former Yugoslavia had
tried this defense?"
The report outlined U.S. laws and international treaties forbidding
torture, and why those restrictions might be overcome by
national-security considerations or legal technicalities. In a March
6, 2003, draft of the report reviewed by The Wall Street Journal,
passages were deleted as was an attachment listing specific
interrogation techniques and whether Mr. Rumsfeld himself or other
officials must grant permission before they could be used. The
complete draft document was classified "secret" by Mr. Rumsfeld and
scheduled for declassification in 2013.
The draft report, which exceeds 100 pages, deals with a range of legal
issues related to interrogations, offering definitions of the degree
of pain or psychological manipulation that could be considered lawful.
But at its core is an exceptional argument that because nothing is
more important than "obtaining intelligence vital to the protection of
untold thousands of American citizens," normal strictures on torture
might not apply.
The president, despite domestic and international laws constraining
the use of torture, has the authority as commander in chief to approve
almost any physical or psychological actions during interrogation, up
to and including torture, the report argued. Civilian or military
personnel accused of torture or other war crimes have several
potential defenses, including the "necessity" of using such methods to
extract information to head off an attack, or "superior orders,"
sometimes known as the Nuremberg defense: namely that the accused was
acting pursuant to an order and, as the Nuremberg tribunal put it, no
"moral choice was in fact possible."
According to Bush administration officials, the report was compiled by
a working group appointed by the Defense Department's general counsel,
William J. Haynes II. Air Force General Counsel Mary Walker headed the
group, which comprised top civilian and uniformed lawyers from each
military branch and consulted with the Justice Department, the Joint
Chiefs of Staff, the Defense Intelligence Agency and other
intelligence agencies. It isn't known if President Bush has ever seen
the report.
A Pentagon official said some military lawyers involved objected to
some of the proposed interrogation methods as "different than what our
people had been trained to do under the Geneva Conventions," but those
lawyers ultimately signed on to the final report in April 2003,
shortly after the war in Iraq began. The Journal hasn't seen the full
final report, but people familiar with it say there were few
substantial changes in legal analysis between the draft and final
versions.
A military lawyer who helped prepare the report said that political
appointees heading the working group sought to assign to the president
virtually unlimited authority on matters of torture -- to assert
"presidential power at its absolute apex," the lawyer said. Although
career military lawyers were uncomfortable with that conclusion, the
military lawyer said they focused their efforts on reining in the more
extreme interrogation methods, rather than challenging the
constitutional powers that administration lawyers were saying
President Bush could claim.
The Pentagon disclosed last month that the working group had been
assembled to review interrogation policies after intelligence
officials in Guantanamo reported frustration in extracting information
from prisoners. At a news conference last week, Gen. James T. Hill,
who oversees the offshore prison at Guantanamo as head of the U.S.
Southern Command, said the working group sought to identify "what is
legal and consistent with not only Geneva [but] ... what is right for
our soldiers." He said Guantanamo is "a professional, humane detention
and interrogation operation ... bounded by law and guided by the
American spirit."
Gen. Hill said Mr. Rumsfeld gave him the final set of approved
interrogation techniques on April 16, 2003. Four of the methods
require the defense secretary's approval, he said, and those methods
had been used on two prisoners. He said interrogators had stopped
short of using all the methods lawyers had approved. It remains
unclear what actions U.S. officials took as a result of the legal
advice.
Critics who have seen the draft report said it undercuts the
administration's claims that it recognized a duty to treat prisoners
humanely. The "claim that the president's commander-in-chief power
includes the authority to use torture should be unheard of in this day
and age," said Michael Ratner, president of the Center for
Constitutional Rights, a New York advocacy group that has filed
lawsuits against U.S. detention policies. "Can one imagine the
reaction if those on trial for atrocities in the former Yugoslavia had
tried this defense?"
Following scattered reports last year of harsh interrogation
techniques used by the U.S. overseas, Sen. Patrick Leahy, a Vermont
Democrat, wrote to National Security Adviser Condoleezza Rice asking
for clarification. The response came in June 2003 from Mr. Haynes, who
wrote that the U.S. was obliged to conduct interrogations "consistent
with" the 1994 international Convention Against Torture and the
federal Torture Statute enacted to implement the convention outside
the U.S.
The U.S. "does not permit, tolerate or condone any such torture by its
employees under any circumstances," Mr. Haynes wrote. The U.S. also
followed its legal duty, required by the torture convention, "to
prevent other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture," he wrote.
The U.S. position is that domestic criminal laws and the
Constitution's prohibition of cruel and unusual punishments already
met the Convention Against Torture's requirements within U.S.
territory.
The Convention Against Torture was proposed in 1984 by the United
Nations General Assembly and was ratified by the U.S. in 1994. It
states that "no exceptional circumstances whatsoever, whether a state
of war or a threat of war, internal political instability or any other
public emergency, may be invoked as a justification of torture," and
that orders from superiors "may not be invoked as a justification of
torture."
That prohibition was reaffirmed after the Sept. 11 attacks by the U.N.
panel that oversees the treaty, the Committee Against Torture, and the
March 2003 report acknowledged that "other nations and international
bodies may take a more restrictive view" of permissible interrogation
methods than did the Bush administration.
The report then offers a series of legal justifications for limiting
or disregarding antitorture laws and proposed legal defenses that
government officials could use if they were accused of torture.
A military official who helped prepare the report said it came after
frustrated Guantanamo interrogators had begun trying unorthodox
methods on recalcitrant prisoners. "We'd been at this for a year-plus
and got nothing out of them" so officials concluded "we need to have a
less-cramped view of what torture is and is not."
The official said, "People were trying like hell how to ratchet up the
pressure," and used techniques that ranged from drawing on prisoners'
bodies and placing women's underwear on prisoners heads -- a practice
that later reappeared in the Abu Ghraib prison -- to telling subjects,
"I'm on the line with somebody in Yemen and he's in a room with your
family and a grenade that's going to pop unless you talk."
Senior officers at Guantanamo requested a "rethinking of the whole
approach to defending your country when you have an enemy that does
not follow the rules," the official said. Rather than license torture,
this official said that the report helped rein in more "assertive"
approaches.
Methods now used at Guantanamo include limiting prisoners' food,
denying them clothing, subjecting them to body-cavity searches,
depriving them of sleep for as much as 96 hours and shackling them in
so-called stress positions, a military-intelligence official said.
Although the interrogators consider the methods to be humiliating and
unpleasant, they don't view them as torture, the official said.
The working-group report elaborated the Bush administration's view
that the president has virtually unlimited power to wage war as he
sees fit, and neither Congress, the courts nor international law can
interfere. It concluded that neither the president nor anyone
following his instructions was bound by the federal Torture Statute,
which makes it a crime for Americans working for the government
overseas to commit or attempt torture, defined as any act intended to
"inflict severe physical or mental pain or suffering." Punishment is
up to 20 years imprisonment, or a death sentence or life imprisonment
if the victim dies.
"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 report asserted.
(The parenthetical comment is in the original document.) The Justice
Department "concluded that it could not bring a criminal prosecution
against a defendant who had acted pursuant to an exercise of the
president's constitutional power," the report said. Citing
confidential Justice Department opinions drafted after Sept. 11, 2001,
the report advised that the executive branch of the government had
"sweeping" powers to act as it sees fit because "national security
decisions require the unity in purpose and energy in action that
characterize the presidency rather than Congress."
The lawyers concluded that the Torture Statute applied to Afghanistan
but not Guantanamo, because the latter lies within the "special
maritime and territorial jurisdiction of the United States, and
accordingly is within the United States" when applying a law that
regulates only government conduct abroad.
Administration lawyers also concluded that the Alien Tort Claims Act,
a 1789 statute that allows noncitizens to sue in U.S. courts for
violations of international law, couldn't be invoked against the U.S.
government unless it consents, and that the 1992 Torture Victims
Protection Act allowed suits only against foreign officials for
torture or "extrajudicial killing" and "does not apply to the conduct
of U.S. agents acting under the color of law."
The Bush administration has argued before the Supreme Court that
foreigners held at Guantanamo have no constitutional rights and can't
challenge their detention in court. The Supreme Court is expected to
rule on that question by month's end.
For Afghanistan and other foreign locations where the Torture Statute
applies, the March 2003 report offers a narrow definition of torture
and then lays out defenses that government officials could use should
they be charged with committing torture, such as mistakenly relying in
good faith on the advice of lawyers or experts that their actions were
permissible. "Good faith may be a complete defense" to a torture
charge, the report advised.
"The infliction of pain or suffering per se, whether it is physical or
mental, is insufficient to amount to torture," the report advises.
Such suffering must be "severe," the lawyers advise, and they rely on
a dictionary definition to suggest it "must be of such a high level of
intensity that the pain is difficult for the subject to endure."
The law says torture can be caused by administering or threatening to
administer "mind-altering substances or other procedures calculated to
disrupt profoundly the sense of personality." The Bush lawyers
advised, though, that it "does not preclude any and all use of drugs"
and "disruption of the senses or personality alone is insufficient" to
be illegal. For involuntarily administered drugs or other
psychological methods, the "acts must penetrate to the core of an
individual's ability to perceive the world around him," the lawyers
found.
Gen. Hill said last week that the military didn't use injections or
chemicals on prisoners.
After defining torture and other prohibited acts, the memo presents
"legal doctrines ... that could render specific conduct, otherwise
criminal, not unlawful." Foremost, the lawyers rely on the
"commander-in-chief authority," concluding that "without a clear
statement otherwise, criminal statutes are not read as infringing on
the president's ultimate authority" to wage war. Moreover, "any effort
by Congress to regulate the interrogation of unlawful combatants would
violate the Constitution's sole vesting of the commander-in-chief
authority in the president," the lawyers advised.
Likewise, the lawyers found that "constitutional principles" make it
impossible to "punish officials for aiding the president in exercising
his exclusive constitutional authorities" and neither Congress nor the
courts could "require or implement the prosecution of such an
individual."
To protect subordinates should they be charged with torture, the memo
advised that Mr. Bush issue a "presidential directive or other
writing" that could serve as evidence, since authority to set aside
the laws is "inherent in the president."
The report advised that government officials could argue that
"necessity" justified the use of torture. "Sometimes the greater good
for society will be accomplished by violating the literal language of
the criminal law," the lawyers wrote, citing a standard legal text,
"Substantive Criminal Law" by Wayne LaFave and Austin W. Scott. "In
particular, the necessity defense can justify the intentional killing
of one person ... so long as the harm avoided is greater."
In addition, the report advised that torture or homicide could be
justified as "self-defense," should an official "honestly believe" it
was necessary to head off an imminent attack on the U.S. The
self-defense doctrine generally has been asserted by individuals
fending off assaults, and in 1890, the Supreme Court upheld a U.S.
deputy marshal's right to shoot an assailant of Supreme Court Justice
Stephen Field as involving both self-defense and defense of the
nation. Citing Justice Department opinions, the report concluded that
"if a government defendant were to harm an enemy combatant during an
interrogation in a manner that might arguably violate criminal
prohibition," he could be justified "in doing so in order to prevent
further attacks on the United States by the al Qaeda terrorist
network."
Mr. LaFave, a law professor at the University of Illinois, said he was
unaware that the Pentagon used his textbook in preparing its legal
analysis. He agreed, however, that in some cases necessity could be a
defense to torture charges. "Here's a guy who knows with certainty
where there's a bomb that will blow New York City to smithereens.
Should we torture him? Seems to me that's an easy one," Mr. LaFave
said. But he said necessity couldn't be a blanket justification for
torturing prisoners because of a general fear that "the nation is in
danger."
For members of the military, the report suggested that officials could
escape torture convictions by arguing that they were following
superior orders, since such orders "may be inferred to be lawful" and
are "disobeyed at the peril of the subordinate." Examining the
"superior orders" defense at the Nuremberg trials of Nazi war
criminals, the Vietnam War prosecution of U.S. Army Lt. William Calley
for the My Lai massacre and the current U.N. war-crimes tribunals for
Rwanda and the former Yugoslavia, the report concluded it could be
asserted by "U.S. armed forces personnel engaged in exceptional
interrogations except where the conduct goes so far as to be patently
unlawful."
The report seemed "designed to find the legal loopholes that will
permit the use of torture against detainees," said Mary Ellen
O'Connell, an international-law professor at the Ohio State University
who has seen the report. "CIA operatives will think they are covered
because they are not going to face liability." 

 
I precursori .... de che'? :)
-Stefano

I precursori .... de che'? :)
Beh, il post mi sembra sia chiaro...

 Beh, il post mi sembra sia chiaro...
Il post e' chiaro.  Non e' chiaro il tuo titolo.
Ripeto quindi la domanda: I precursori .... de che'? :)
-Stefano

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Se il post è chiaro allora il titolo si spiega da se...

 Se il post è chiaro allora il titolo si spiega da se...
Se lo dici tu... :)
-Stefano

 certo che lo dico io,
Ipse Dixit! :)
-Stefano

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certo che lo dico io, chi  altri altrimenti?

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Ego dico :-)