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[The] argument . . . is that the president, as commander in chief, is the law when it comes to the enemy. . . . [He is] unchecked by the courts or any other authority. . . . That’s a very dangerous notion for a free country. —Newsday editorial, “Tormented Truths,” June 10
In 2002, Donald Rumsfeld was asked by the CIA for legal advice about how to extract information from captured alleged terrorists. Rumsfeld turned to the Justice Department, and a memorandum was prepared by John Ashcroft’s Office of Legal Counsel—and shown as well to White House counsel Alberto Gonzales.
The essence of this memo’s language—as reported in a front-page June 8 Washington Post story—was very similar to the March 2003 extensive Pentagon justification of torture that broke in the June 7 Wall Street Journal. Ashcroft’s office had said: “[It] may be justified” to torture captured Al Qaeda terrorists abroad “in order to prevent future attacks on the United States by the Al Qaeda terrorist network . . . ” “Necessity and self-defense,” said the Justice Department, “could provide justification that would eliminate any criminal liability.”
It was this hitherto secret August 2002 memo from John Ashcroft’s department that helped lay the groundwork for the much longer and more inflammatory March 2003 classified Pentagon report from a constellation of administration civilian and military lawyers. These attorneys, presumably graduates of top law schools, included participants from intelligence agencies and the Justice Department that have exploded the government’s cover-up of its selective approval of torture.
That March 2003 report includes stunning analysis of the overwhelming extent of George W. Bush’s power. As summarized by The Wall Street Journal, ” ‘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.’ ”
If the persnickety courts insisted on getting involved in accusations of torture, there is, says the memo, the defense of necessity and self-defense: “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent future attacks on the United States by the Al Qaeda terrorist network. . . . In that case, DOJ [Department of Justice] believes that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
But these crafty lawyers on the Bush team provided another possible defense. In “exceptional interrogations,” the torturer could claim he or she was following “superior orders.” This is also known as the Nuremberg defense, urgently and unsuccessfully offered by Nazi leaders at the Nuremberg trials.
Now, what kinds of torture—according to these U.S. government memoranda—are permissible? Here we see an exercise in slippery semantics that recalls Bill Clinton’s famous end run: “It depends on what ‘is’ is.” John Ashcroft told the Senate Judiciary Committee, “It is not the job of the Justice Department or this administration to define torture.”
From the March 6, 2003, “Working Group Report” that John Ashcroft refuses to declassify, even though he says he is not even invoking executive privilege, the June 10 Financial Times has focused on this chilling excerpt:
” ‘A defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering.’ . . . The suffering may be physical or mental, but in the case of mental suffering, ‘the harm must cause some lasting, but not necessarily permanent’ suffering.” Omitted is, how “lasting” is “lasting”?
Moreover, and read this one closely: “The adjective ‘severe’ conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.” And as The Economist adds from the 2003 text: “To qualify as torture, the pain has to be ‘equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.’ ”
But just knowing that severe pain is reasonably likely to happen does not meet the test of “specific intent.” Accordingly, the defendant cannot be convicted of a crime.
This repellent semantic game approving torture is also in the August 1, 2002, Justice Department memorandum, “Standards of Conduct for Interrogations.”
But what of the distinguished government lawyers who came up with these ways of evading the U.N. Convention on Torture, which this country signed in 1994, as well as the congressional statute forbidding our use of torture anywhere?
Scott Horton, former chairman of the New York Bar Association’s international human rights committee, told Financial Times that these lawyers “could and should face professional sanctions. . . .
” ‘There are serious ethical shortcomings here. . . . Lawyers who are employed by the U.S. government have a responsibility to uphold and enforce the laws of the United States. . . . To make an argument that the president’s wartime powers give him the right to avoid these statutes is preposterous.’ ”
The Bush administration’s lawless encouragement of torture has led to the abuses veering on torture at Bagram Air Base in Afghanistan documented in The Washington Post, December 26, 2002 (a story followed in columns here); Guantánamo; and Abu Ghraib prison in Iraq. Next week in this column, the CIA’s super-secret prison interrogation centers somewhere around the world, as exclusively detailed on the May 13 Nightline, “The Disappeared.” I have seen hardly any follow-ups to that frightening story. If you have, let me know.
How long will this new clear evidence from the Pentagon report of the Bush administration’s euphemistically condoning torture have “legs,” as newspaper people say? And how can Bush and company credibly protest when and if American captives are tortured overseas?
To be continued.