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</font><font face="helvetica" size=2><b><a href="http://www.washingtonpost.com/">washingtonpost.com</a></b><a href="http://www.washingtonpost.com/">
<br><br>
</a></font><font size=5><b>Memo Offered Justification for Use of
Torture</b></font><font size=3> <br>
Justice Dept. Gave Advice in 2002 <br><br>
</font><font size=2>By Dana Priest and R. Jeffrey Smith<br>
Washington Post Staff Writers<br>
Tuesday, June 8, 2004; Page A01 <br><br>
</font><font size=3>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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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."<br><br>
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.<br><br>
Human rights groups expressed dismay at the Justice Department's legal
reasoning yesterday.<br><br>
"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."<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
"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."<br><br>
"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."<br><br>
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."<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
"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.<br><br>
"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."<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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."<br><br>
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. <br><br>
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.<br><br>
<i>Staff writer Josh White contributed to this report.</i> <br><br>
<div align="center">© 2004 The Washington Post Company <br>
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