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 Americas & Beyond | April 2008 
Firestorm Over US Torture Memo
 Laurent Thomet - Agence France-Presse
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| | Sen. Patrick Leahy: Time for answers (AFP)BOXTEXT | | |
Lawmakers and rights groups on Wednesday blasted the US government's tactics in the "war on terror" saying a 2003 legal memo had given the military a green light to use torture in interrogations.
The Justice Department memo, dated March 14, 2003 and released on Wednesday, was sent to the Pentagon as it struggled to set guidelines for interrogators.
It argued the US president's wartime authority exempted them from US and international laws banning cruel treatment.
"Today's news that the Justice Department gave legal cover to the military to use torture and other cruel and inhuman interrogation techniques shocks the conscience," said Democratic Senator Joseph Biden.
"This memo created the lawless atmosphere that led directly to the abuse of detainees at Abu Ghraib. Those who wrote it and those who approved it should be held accountable," the chairman of the Senate Foreign Relations Committee added in a statement.
The 81-page legal opinion was written as the Pentagon sought to draw up a list of approved interrogation methods for use on detainees at the US "war on terror" prison at Guantanamo Bay, Cuba.
"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the Al-Qaeda terrorist network," the memo says.
"In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."
But veteran Democrat Senator Edward Kennedy said the memo showed that the administration of President George W. Bush had "abandoned the rule of law and adopted arguments that could be used by other nations to try to justify the torture of American troops."
"To protect our own soldiers, this administration needs to repudiate not merely withdraw these shameful and shoddy arguments."
Rights groups were equally critical of the memo.
It "shows that the Justice Department gave virtual carte blanche to the Pentagon to engage in torture," said Amrit Singh, staff attorney at the American Civil Liberties Union, which had sought the document's release.
Singh said the memo and a similar 2002 opinion for the CIA undermine the Bush administration's argument that abuses such as the scandal in Baghdad's Abu Ghraib jail in 2003 were abberrations.
"These memos just go to show that it was the policies of the Bush administration that was driving this abuse," she said.
Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, called the memo "incredibly disturbing."
"It's an attempt to write away the legal restrictions prohibiting action like torture, maiming and assault," Daskal said.
But the Pentagon denied mistreating detainees.
"Our policy is to treat detainees humanely and that has always been the case," Commander JD Gordon, a Pentagon spokesman, told AFP.
Former defense secretary Donald Rumsfeld was forced in December 2002 to suspend a list of aggressive techniques amid objections from senior military lawyers.
But, largely because of the memo, a Pentagon working group in April 2003 approved the continued use of "extremely aggressive tactics," including stress positions, nudity, exposure to dogs and hooding, The Washington Post reported.
The newly released document is similar to one written by the same Justice Department official in August 2002 giving the CIA expansive authority to interrogate detainees.
They are part of the legal framework the Bush administration built following the September 11, 2001 attacks in the United States to detain and interrogate "enemy combatants" around the world.
In 2005 Congress limited the interrogation tactics the Defense Department can use. But a bill passed in February to bar the CIA from using harsh methods including waterboarding was vetoed by Bush.
The Infamous Torture Memo
Dale Mcfeatters - Capitol Hill Blue
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The Justice department has released the full text of the infamous 2003 "torture memo" dismissively brushing aside the legal restraints on military interrogators. The torture part of the memo - and cruel, degrading and humiliating treatment whether dressed up as "enhanced" or "aggressive" interrogation is still torture - is alarming enough but what is really chilling is the legal underpinning.
The memo, which originated in the department's Office of Legal Counsel, argues that the president's inherent powers in wartime overrode any federal law or international treaty, raising in the layman's mind the point, why bother to have laws and treaties?
Our government is supposed to be one of checks and balances but the Office of Legal Counsel saw no check on the president's powers. The courts had no jurisdiction on what Americans did overseas and in any case "Congress cannot interfere with the president's exercise of his authority as commander in chief to control operations during a war."
This was one step on the path to the Bush administration's assertion, until the courts knocked it down, that the president had the power to snatch an American citizen on U.S. soil and hold him incommunicado in solitary confinement indefinitely, without charge, trial or counsel.
The memo applied to military interrogators only and it was drafted after the uniformed military lawyers rebelled at an earlier memo authorizing techniques that the armed services also did not approve of. It is instructive that the top lawyers for the military services were excluded from the drafting of the second memo and only learned of its contents much later.
Fortunately, the American public hadn't been scared out of its sense of outrage. The memo was rescinded 10 months later in December, 2003, to be replaced the following year by a Justice department legal opinion asserting "torture is abhorrent both to American law and values and to international norms," which the rest of us had assumed was the case all along.
That was put into law in 2005 when Congress ordered military interrogators - but not those of the CIA - to abide by the Army Field Manual and the Geneva Conventions.
Perhaps this memo should be enshrined at the National Archives along with the Constitution and the Bill of Rights as a salutary warning that those protections should not be taken for granted. |
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