Authorizing Torture

A leaked Pentagon memo argued that presidential authority is above the law.

A 2003 draft Pentagon report argued that the United States was not bound by domestic and international law prohibiting the use of torture and claimed that the weight of a presidential order acted as a shield against possible criminal persecution. The document, first reported on by the Wall Street Journal, further shatters the Bush administration's claim that that the White House never approved the use of torture, making it clear that the abuses at Abu Ghraib were not merely the doing of a"few bad apples," but a reflection of a larger U.S. policy which deemed torture permissible.

As the report states:

"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…

Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law…In particular, the necessity defense can justify the intentional killing of one person ... so long as the harm avoided is greater."

The draft is believed to have formed the basis for the interrogation procedures approved the following month by Defense Secretary Donald Rumsfeld, procedures that were used at Guantanamo Bay, and likely exported to Iraq. According to the report , "the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture."

The Pentagon insists that the draft is not reflective of the classified April report which laid out the interrogation procedures approved by Defense Secretary Donald Rumsfeld for use in Guantanamo Bay. Lawrence Di Rita, the Pentagon's chief spokesman told the New York Times that in contrast to the leaked March draft: "The April document was about interrogation techniques and procedures…It was not a legal analysis."

Attorney General John D. Ashcroft, meanwhile, faced criticism at Capitol Hill yesterday over a 2002 Justice Department memo, which is strikingly similar to the Pentagon report. Ashcroft refused to release the memo, arguing that it was privileged communication between the Justice Department and the White House. At the same time, Aschcroft insisted that there was nothing incriminating to be found in the memo: "There is no presidential order immunizing torture…I condemn torture. I don't think it's productive, let alone justified."

If there was no such authorization, it is difficult to see why the Pentagon and the Justice department took such pains to argue that acts of torture carried out under the presidential orders as part of Bush's"war on terror" are not subject to legal scrutiny either home or abroad, and that congressional oversight does not apply. Moreover, the 2002 memo, like the Pentagon draft report, takes liberties with defining torture. In the memo, Justice Department lawyers argued that for the physical pain inflicted to amount to torture, it:

“…must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.

For purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years."

The implications are clear: anything other than the most blatant examples of torture, are permissible, even if such actions violate the Geneva Convention. More than that, even if soldiers engage in torture, no matter what the severity, if such actions deemed necessary, in President Bush's mind, to fighting the"war on terror," than they are justified. The break with standard military practice cannot be overestimated. As one military attorney, told the Washington Post:

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

President Bush continues to claim that the United States is following the Geneva Convention -- by letter in Iraq and in spirit in Guantanamo Bay, where he does not deem it applicable. Yet the Pentagon report leaked this week is just the latest indication that the administration has looked for every way to undermine and place itself above the Geneva Convention. As executive director of Human Rights Watch Kenneth Roth put it:

"We now know that at the highest levels of the Pentagon there was a shocking interest in using torture and a misguided attempt to evade the criminal consequences of doing so…If anyone still thinks the abuses at Abu Ghraib were only dreamed up by a handful of privates and sergeants, this memo should put that myth to rest."