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.”