Lawyers Decided Bans on Torture
Didn't Bind Bush
June 8, 2004
By NEIL A. LEWIS and ERIC SCHMITT from The New York Times
WASHINGTON, June 7 - A team of administration lawyers concluded in a March 2003 legal
memorandum that President Bush was not bound by either an international treaty prohibiting
torture or by a federal antitorture law because he had the authority as commander in chief
to approve any technique needed to protect the nation's security.
The memo, prepared for Defense Secretary Donald H. Rumsfeld, also said that any executive
branch officials, including those in the military, could be immune from domestic and
international prohibitions against torture for a variety of reasons.
One reason, the lawyers said, would be if military personnel believed that they were
acting on orders from superiors "except where the conduct goes so far as to be
patently unlawful."
"In order to respect the president's inherent constitutional authority to manage a
military campaign," the lawyers wrote in the 56-page confidential memorandum, the
prohibition against torture "must be construed as inapplicable to interrogation
undertaken pursuant to his commander-in-chief authority."
Senior Pentagon officials on Monday sought to minimize the significance of the March memo,
one of several obtained by The New York Times, as an interim legal analysis that had no
effect on revised interrogation procedures that Mr. Rumsfeld approved in April 2003 for
the American military prison at Guantánamo Bay, Cuba.
"The April document was about interrogation techniques and procedures," said
Lawrence Di Rita, the Pentagon's chief spokesman. "It was not a legal analysis."
Mr. Di Rita said the 24 interrogation procedures permitted at Guantánamo, four of which
required Mr. Rumsfeld's explicit approval, did not constitute torture and were consistent
with international treaties.
The March memorandum, which was first reported by The Wall Street Journal on Monday, is
the latest internal legal study to be disclosed that shows that after the Sept. 11
terrorist attacks the administration's lawyers were set to work to find legal arguments to
avoid restrictions imposed by international and American law.
A Jan. 22, 2002, memorandum from the Justice Department that provided arguments to keep
American officials from being charged with war crimes for the way prisoners were detained
and interrogated was used extensively as a basis for the March memorandum on avoiding
proscriptions against torture.
The previously disclosed Justice Department memorandum concluded that administration
officials were justified in asserting that the Geneva Conventions did not apply to
detainees from the Afghanistan war.
Another memorandum obtained by The Times indicates that most of the administration's top
lawyers, with the exception of those at the State Department and the Joint Chiefs of
Staff, approved of the Justice Department's position that the Geneva Conventions did not
apply to the war in Afghanistan. In addition, that memorandum, dated Feb. 2, 2002, noted
that lawyers for the Central Intelligence Agency had asked for an explicit understanding
that the administration's public pledge to abide by the spirit of the conventions did not
apply to its operatives.
The March memo, a copy of which was obtained by The Times, was prepared as part of a
review of interrogation techniques by a working group appointed by the Defense
Department's general counsel, William J. Haynes. The group itself was led by the Air Force
general counsel, Mary Walker, and included military and civilian lawyers from all branches
of the armed services.
The review stemmed from concerns raised by Pentagon lawyers and interrogators at
Guantánamo after Mr. Rumsfeld approved a set of harsher interrogation techniques in
December 2002 to use on a Saudi detainee, Mohamed al-Kahtani, who was believed to be the
planned 20th hijacker in the Sept. 11 terror plot.
Mr. Rumsfeld suspended the harsher techniques, including serving the detainee cold,
prepackaged food instead of hot rations and shaving off his facial hair, on Jan. 12,
pending the outcome of the working group's review. Gen. James T. Hill, head of the
military's Southern Command, which oversees Guantánamo, told reporters last Friday that
the working group "wanted to do what is humane and what is legal and consistent not
only with" the Geneva Conventions, but also "what is right for our
soldiers."
Mr. Di Rita said that the Pentagon officials were focused primarily on the interrogation
techniques, and that the legal rationale included in the March memo was mostly prepared by
the Justice Department and White House counsel's office.
The memo showed that not only lawyers from the Defense and Justice departments and the
White House approved of the policy but also that David S. Addington, the counsel to Vice
President Dick Cheney, also was involved in the deliberations. The State Department
lawyer, William H. Taft IV, dissented, warning that such a position would weaken the
protections of the Geneva Conventions for American troops.
The March 6 document about torture provides tightly constructed definitions of torture.
For example, if an interrogator "knows that severe pain will result from his actions,
if causing such harm is not his objective, he lacks the requisite specific intent even
though the defendant did not act in good faith," the report said. "Instead, a
defendant is guilty of torture only if he acts with the express purpose of inflicting
severe pain or suffering on a person within his control."
The adjective "severe," the report said, "makes plain that the infliction
of pain or suffering per se, whether it is physical or mental, is insufficient to amount
to torture. Instead, the text provides that pain or suffering must be `severe.' " The
report also advised that if an interrogator "has a good faith belief his actions will
not result in prolonged mental harm, he lacks the mental state necessary for his actions
to constitute torture."
The report also said that interrogators could justify breaching laws or treaties by
invoking the doctrine of necessity. An interrogator using techniques that cause harm might
be immune from liability if he "believed at the moment that his act is necessary and
designed to avoid greater harm."
Scott Horton, the former head of the human rights committee of the Association of the Bar
of the City of New York, said Monday that he believed that the March memorandum on
avoiding responsibility for torture was what caused a delegation of military lawyers to
visit him and complain privately about the administration's confidential legal arguments.
That visit, he said, resulted in the association undertaking a study and issuing of a
report criticizing the administration. He added that the lawyers who drafted the torture
memo in March could face professional sanctions.
Jamie Fellner, the director of United States programs for Human Rights Watch, said Monday,
"We believe that this memo shows that at the highest levels of the Pentagon there was
an interest in using torture as well as a desire to evade the criminal consequences of
doing so."
The March memorandum also contains a curious section in which the lawyers argued that any
torture committed at Guantánamo would not be a violation of the anti-torture statute
because the base was under American legal jurisdiction and the statute concerns only
torture committed overseas. That view is in direct conflict with the position the
administration has taken in the Supreme Court, where it has argued that prisoners at
Guantánamo Bay are not entitled to constitutional protections because the base is outside
American jurisdiction.
Kate Zernike contributed reporting for this article.
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