[News] Memo Offered Justification for Use of Torture

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Memo Offered Justification for Use of Torture
Justice Dept. Gave Advice in 2002

By Dana Priest and R. Jeffrey Smith
Washington Post Staff Writers
Tuesday, June 8, 2004; Page A01

In August 2002, the Justice Department advised the White House that 
torturing al Qaeda terrorists in captivity abroad "may be justified," and 
that international laws against torture "may be unconstitutional if applied 
to interrogations" conducted in President Bush's war on terrorism, 
according to a newly obtained memo.

If a government employee were to torture a suspect in captivity, "he would 
be doing so in order to prevent further attacks on the United States by the 
Al Qaeda terrorist network," said the memo, from the Justice Department's 
office of legal counsel, written in response to a CIA request for legal 
guidance. It added that arguments centering on "necessity and self-defense 
could provide justifications that would eliminate any criminal liability" 
later.

The memo seems to counter the pre-Sept. 11, 2001, assumption that U.S. 
government personnel would never be permitted to torture captives. It was 
offered after the CIA began detaining and interrogating suspected al Qaeda 
leaders in Afghanistan and elsewhere in the wake of the attacks, according 
to government officials familiar with the document.

The legal reasoning in the 2002 memo, which covered treatment of al Qaeda 
detainees in CIA custody, was later used in a March 2003 report by Pentagon 
lawyers assessing interrogation rules governing the Defense Department's 
detention center at Guantanamo Bay, Cuba. At that time, Defense Secretary 
Donald H. Rumsfeld had asked the lawyers to examine the logistical, policy 
and legal issues associated with interrogation techniques.

Bush administration officials say flatly that, despite the discussion of 
legal issues in the two memos, it has abided by international conventions 
barring torture, and that detainees at Guantanamo and elsewhere have been 
treated humanely, except in the cases of abuse at Abu Ghraib prison in Iraq 
for which seven military police soldiers have been charged.

Still, the 2002 and 2003 memos reflect the Bush administration's desire to 
explore the limits on how far it could legally go in aggressively 
interrogating foreigners suspected of terrorism or of having information 
that could thwart future attacks.

In the 2002 memo, written for the CIA and addressed to White House Counsel 
Alberto R. Gonzales, the Justice Department defined torture in a much 
narrower way, for example, than does the U.S. Army, which has historically 
carried out most wartime interrogations.

In the Justice Department's view -- contained in a 50-page document signed 
by Assistant Attorney General Jay S. Bybee and obtained by The Washington 
Post -- inflicting moderate or fleeting pain does not necessarily 
constitute torture. Torture, the memo says, "must be equivalent in 
intensity to the pain accompanying serious physical injury, such as organ 
failure, impairment of bodily function, or even death."

By contrast, the Army's Field Manual 34-52, titled "Intelligence 
Interrogations," sets more restrictive rules. For example, the Army 
prohibits pain induced by chemicals or bondage; forcing an individual to 
stand, sit or kneel in abnormal positions for prolonged periods of time; 
and food deprivation. Under mental torture, the Army prohibits mock 
executions, sleep deprivation and chemically induced psychosis.

Human rights groups expressed dismay at the Justice Department's legal 
reasoning yesterday.

"It is by leaps and bounds the worst thing I've seen since this whole Abu 
Ghraib scandal broke," said Tom Malinowski of Human Rights Watch. "It 
appears that what they were contemplating was the commission of war crimes 
and looking for ways to avoid legal accountability. The effect is to throw 
out years of military doctrine and standards on interrogations."

But a spokesman for the White House counsel's office said, "The president 
directed the military to treat al Qaeda and Taliban humanely and consistent 
with the Geneva Conventions."

Mark Corallo, the Justice Department's chief spokesman, said "the 
department does not comment on specific legal advice it has provided 
confidentially within the executive branch." But he added: "It is the 
policy of the United States to comply with all U.S. laws in the treatment 
of detainees -- including the Constitution, federal statutes and treaties." 
The CIA declined to comment.

The Justice Department's interpretation for the CIA sought to provide 
guidance on what sorts of aggressive treatments might not fall within the 
legal definition of torture.

The 2002 memo, for example, included the interpretation that "it is 
difficult to take a specific act out of context and conclude that the act 
in isolation would constitute torture." The memo named seven techniques 
that courts have considered torture, including severe beatings with 
truncheons and clubs, threats of imminent death, burning with cigarettes, 
electric shocks to genitalia, rape or sexual assault, and forcing a 
prisoner to watch the torture of another person.

"While we cannot say with certainty that acts falling short of these seven 
would not constitute torture," the memo advised, ". . . we believe that 
interrogation techniques would have to be similar to these in their extreme 
nature and in the type of harm caused to violate law."

"For purely mental pain or suffering to amount to torture," the memo said, 
"it must result in significant psychological harm of significant duration, 
e.g., lasting for months or even years." Examples include the development 
of mental disorders, drug-induced dementia, "post traumatic stress disorder 
which can last months or even years, or even chronic depression."

Of mental torture, however, an interrogator could show he acted in good 
faith by "taking such steps as surveying professional literature, 
consulting with experts or reviewing evidence gained in past experience" to 
show he or she did not intend to cause severe mental pain and that the 
conduct, therefore, "would not amount to the acts prohibited by the statute."

In 2003, the Defense Department conducted its own review of the limits that 
govern torture, in consultation with experts at the Justice Department and 
other agencies. The aim of the March 6, 2003, review, conducted by a 
working group that included representatives of the military services, the 
Joint Chiefs of Staff and the intelligence community, was to provide a 
legal basis for what the group's report called "exceptional interrogations."

Much of the reasoning in the group's report and in the Justice Department's 
2002 memo overlap. The documents, which address treatment of al Qaeda and 
Taliban detainees, were not written to apply to detainees held in Iraq.

In a draft of the working group's report, for example, Pentagon lawyers 
approvingly cited the Justice Department's 2002 position that domestic and 
international laws prohibiting torture could be trumped by the president's 
wartime authority and any directives he issued.

At the time, the Justice Department's legal analysis, however, shocked some 
of the military lawyers who were involved in crafting the new guidelines, 
said senior defense officials and military lawyers.

"Every flag JAG lodged complaints," said one senior Pentagon official 
involved in the process, referring to the judge advocate generals who are 
military lawyers of each service.

"It's really unprecedented. For almost 30 years we've taught the Geneva 
Convention one way," said a senior military attorney. "Once you start 
telling people it's okay to break the law, there's no telling where they 
might stop."

A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere 
in the world. But the Pentagon group's report, prepared under the 
supervision of General Counsel William J. Haynes II, said that "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 Pentagon group's report, divulged yesterday by the Wall Street Journal 
and obtained by The Post, said further that the 1994 law barring torture 
"does not apply to the conduct of U.S. personnel" at Guantanamo Bay.

It also said the anti-torture law did apply to U.S. military interrogations 
that occurred outside U.S. "maritime and territorial jurisdiction," such as 
in Iraq or Afghanistan. But it said both Congress and the Justice 
Department would have difficulty enforcing the law if U.S. military 
personnel could be shown to be acting as a result of presidential orders.

The report then parsed at length the definition of torture under domestic 
and international law, with an eye toward guiding military personnel about 
legal defenses.

The Pentagon report uses language very similar to that in the 2002 Justice 
Department memo written in response to the CIA's request: "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 further attacks on the United States by the al Qaeda 
terrorist network," the draft states. "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."

The draft goes on to assert that a soldier's claim that he was following 
"superior orders" would be available for those engaged in "exceptional 
interrogations except where the conduct goes so far as to be patently 
unlawful." It asserts, as does the Justice view expressed for the CIA, that 
the mere infliction of pain and suffering is not unlawful; the pain or 
suffering must be severe.

A Defense Department spokesman said last night that the March 2003 memo 
represented "a scholarly effort to define the perimeters of the law" but 
added: "What is legal and what is put into practice is a different story." 
Pentagon officials said the group examined at least 35 interrogation 
techniques, and Rumsfeld later approved using 24 of them in a classified 
directive on April 16, 2003, that governed all activities at Guantanamo 
Bay. The Pentagon has refused to make public the 24 interrogation procedures.

Staff writer Josh White contributed to this report.

© 2004 The Washington Post Company
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