June 07, 2004

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...

Consider the source. The WSJ, a "US mainstream news media" institution, has published a story on a highly classified Pentagon document, that the WSJ itself has reviewed. The facts of the story contradict the public statements of the increasingly unhinged and incredibly shrinking _resident, as well as Rumsfeld and others, concerning what happened at Abu Ghraib and who is responsible...As the LNS has stated repeatedly, the stench of Abu Ghraib is on the Bush White House, and the stench of the Bush White House is on Abu Ghraib...

Jess Bravin, Wall Street Journal: 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 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.

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http://www.commondreams.org/headlines04/0607-01.htm

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.

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."

Copyright 2004 Dow Jones & Company, Inc

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Posted by richard at June 7, 2004 10:51 AM