Tortured Logic: Legal spin does not exempt U.S. from rule of law
Published 5:30 am, Thursday, June 10, 2004
The United States' moral authority to call for the rule of law and respect for human rights has been undermined by legal machinations the Bush administration undertook to justify torturing prisoners taken in the war on terror.
Administration officials have attempted to downplay the significance of a March 6, 2003, Justice Department memorandum that concluded that, as commander in chief in time of war, President George W. Bush is bound neither by federal law nor the tenets of the Geneva Conventions that ban torture as a means of extracting information from detainees.
Most Americans will have difficulty believing that this memo, prepared for Defense Secretary Donald Rumsfeld and first disclosed by the Wall Street Journal, and others were merely ruminations on the law not meant to guide how prisoners would be treated in Iraq, Afghanistan and at Guantanamo Bay, Cuba.
The March memo asserts that interrogators could inflict severe pain on a detainee with impunity as long as the intent was something other than to torture. An interrogator would be culpable only if he knew his actions would inflict suffering that is severe enough to induce "prolonged" physical or mental effects. An interrogator would be immune from punishment if he believed he acted to prevent a larger harm, the lawyers determined.
The memos were obviously concocted to defend acts that are clearly beyond the bounds of a civilized nation.
The memos support the view that the prisoner abuses uncovered at the Abu Ghraib prison in Iraq were not merely the grave mistakes of a few soldiers, but resulted from policies formed at the highest levels of government. They strengthen concerns about how detainees at Guantanamo and in Afghanistan are being treated.
There is a legal doctrine of necessity that argues that law enforcement officers might be justified in using torture to extract information that could be used to prevent an immediate threat, such as the location of a ticking time bomb. But even this desperate resort falls outside the law.
The ticking time bomb theory does not apply to Abu Ghraib, where U.S. military officials often had no real idea who they were holding in the cells or what danger the prisoners might pose to U.S. forces. Hundreds of Iraqi prisoners, held without sufficient cause, have been set free.
U.S. Attorney General John Ashcroft refused to provide Congress with memos describing the interrogation techniques the administration had approved for prisoners in Afghanistan and al-Qaida suspects transported to Guantanamo. A few tactics made public — such as serving cold prepacked food instead of hot meals, shaving facial hair; prolonged interrogation and sleep deprivation — are more discomfort than torture.
Still, the memos reinforce the perception that this administration recognizes few if any limits on its behavior. By seeming to reject the Geneva Conventions and federal laws banning torture, the administration set the stage for the prisoner abuse in Iraq and endangered captured U.S. troops and civilians who otherwise might have been treated less harshly. Surely the United States would not stand for another country using the memos' arguments to justify torturing American POWs.
After he resigned in disgrace, Richard Nixon told an interviewer that, "If the president does it, it's not illegal." Nixon was wrong, and this administration is equally wrong to make a similar claim of executive immunity.