Pentagon Report Set Framework For Use of Torture

Security or Legal Factors Could Trump Restrictions,
Memo to Rumsfeld Argued

By JESS BRAVIN Staff Reporter of THE WALL STREET
JOURNAL Wall Street Journal June 7, 2004

http://online.wsj.com/article/0,,SB108655737612529969,00.html

Bush administration lawyers contended last year that
the president wasn’t bound by laws prohibiting torture
and that government agents who might torture prisoners
at his direction couldn’t be prosecuted by the Justice
Department.

The advice was part of a classified report on
interrogation methods prepared for Defense Secretary
Donald Rumsfeld after commanders at Guantanamo Bay,
Cuba, complained in late 2002 that with conventional
methods they weren’t getting enough information from
prisoners.

The report outlined U.S. laws and international
treaties forbidding torture, and why those restrictions
might be overcome by national-security considerations
or legal technicalities. In a March 6, 2003, draft of
the report reviewed by The Wall Street Journal,
passages were deleted as was an attachment listing
specific interrogation techniques and whether Mr.
Rumsfeld himself or other officials must grant
permission before they could be used. The complete
draft document was classified "secret" by Mr. Rumsfeld
and scheduled for declassification in 2013.

The draft report, which exceeds 100 pages, deals with a
range of legal issues related to interrogations,
offering definitions of the degree of pain or
psychological manipulation that could be considered
lawful. But at its core is an exceptional argument that
because nothing is more important than "obtaining
intelligence vital to the protection of untold
thousands of American citizens," normal strictures on
torture might not apply.

The president, despite domestic and international laws
constraining the use of torture, has the authority as
commander in chief to approve almost any physical or
psychological actions during interrogation, up to and
including torture, the report argued. Civilian or
military personnel accused of torture or other war
crimes have several potential defenses, including the
"necessity" of using such methods to extract
information to head off an attack, or "superior
orders," sometimes known as the Nuremberg defense:
namely that the accused was acting pursuant to an order
and, as the Nuremberg tribunal put it, no "moral choice
was in fact possible."

According to Bush administration officials, the report
was compiled by a working group appointed by the
Defense Department’s general counsel, William J. Haynes
II. Air Force General Counsel Mary Walker headed the
group, which comprised top civilian and uniformed
lawyers from each military branch and consulted with
the Justice Department, the Joint Chiefs of Staff, the
Defense Intelligence Agency and other intelligence
agencies. It isn’t known if President Bush has ever
seen the report.

A Pentagon official said some military lawyers involved
objected to some of the proposed interrogation methods
as "different than what our people had been trained to
do under the Geneva Conventions," but those lawyers
ultimately signed on to the final report in April 2003,
shortly after the war in Iraq began. The Journal hasn’t
seen the full final report, but people familiar with it
say there were few substantial changes in legal
analysis between the draft and final versions.

A military lawyer who helped prepare the report said
that political appointees heading the working group
sought to assign to the president virtually unlimited
authority on matters of torture — to assert
"presidential power at its absolute apex," the lawyer
said. Although career military lawyers were
uncomfortable with that conclusion, the military lawyer
said they focused their efforts on reining in the more
extreme interrogation methods, rather than challenging
the constitutional powers that administration lawyers
were saying President Bush could claim.

The Pentagon disclosed last month that the working
group had been assembled to review interrogation
policies after intelligence officials in Guantanamo
reported frustration in extracting information from
prisoners. At a news conference last week, Gen. James
T. Hill, who oversees the offshore prison at Guantanamo
as head of the U.S. Southern Command, said the working
group sought to identify "what is legal and consistent
with not only Geneva [but] ... what is right for our
soldiers." He said Guantanamo is "a professional,
humane detention and interrogation operation ...
bounded by law and guided by the American spirit."

Gen. Hill said Mr. Rumsfeld gave him the final set of
approved interrogation techniques on April 16, 2003.
Four of the methods require the defense secretary’s
approval, he said, and those methods had been used on
two prisoners. He said interrogators had stopped short
of using all the methods lawyers had approved. It
remains unclear what actions U.S. officials took as a
result of the legal advice.

Critics who have seen the draft report said it
undercuts the administration’s claims that it
recognized a duty to treat prisoners humanely. The
"claim that the president’s commander-in-chief power
includes the authority to use torture should be unheard
of in this day and age," said Michael Ratner, president
of the Center for Constitutional Rights, a New York
advocacy group that has filed lawsuits against U.S.
detention policies. "Can one imagine the reaction if
those on trial for atrocities in the former Yugoslavia
had tried this defense?"

Following scattered reports last year of harsh
interrogation techniques used by the U.S. overseas,
Sen. Patrick Leahy, a Vermont Democrat, wrote to
National Security Adviser Condoleezza Rice asking for
clarification. The response came in June 2003 from Mr.
Haynes, who wrote that the U.S. was obliged to conduct
interrogations "consistent with" the 1994 international
Convention Against Torture and the federal Torture
Statute enacted to implement the convention outside the
U.S.

The U.S. "does not permit, tolerate or condone any such
torture by its employees under any circumstances," Mr.
Haynes wrote. The U.S. also followed its legal duty,
required by the torture convention, "to prevent other
acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture," he wrote.

The U.S. position is that domestic criminal laws and
the Constitution’s prohibition of cruel and unusual
punishments already met the Convention Against
Torture’s requirements within U.S. territory.

The Convention Against Torture was proposed in 1984 by
the United Nations General Assembly and was ratified by
the U.S. in 1994. It states that "no exceptional
circumstances whatsoever, whether a state of war or a
threat of war, internal political instability or any
other public emergency, may be invoked as a
justification of torture," and that orders from
superiors "may not be invoked as a justification of
torture."

That prohibition was reaffirmed after the Sept. 11
attacks by the U.N. panel that oversees the treaty, the
Committee Against Torture, and the March 2003 report
acknowledged that "other nations and international
bodies may take a more restrictive view" of permissible
interrogation methods than did the Bush administration.

The report then offers a series of legal justifications
for limiting or disregarding antitorture laws and
proposed legal defenses that government officials could
use if they were accused of torture.

A military official who helped prepare the report said
it came after frustrated Guantanamo interrogators had
begun trying unorthodox methods on recalcitrant
prisoners. "We’d been at this for a year-plus and got
nothing out of them" so officials concluded "we need to
have a less-cramped view of what torture is and is
not."

The official said, "People were trying like hell how to
ratchet up the pressure," and used techniques that
ranged from drawing on prisoners’ bodies and placing
women’s underwear on prisoners heads — a practice that
later reappeared in the Abu Ghraib prison — to telling
subjects, "I’m on the line with somebody in Yemen and
he’s in a room with your family and a grenade that’s
going to pop unless you talk."

Senior officers at Guantanamo requested a "rethinking
of the whole approach to defending your country when
you have an enemy that does not follow the rules," the
official said. Rather than license torture, this
official said that the report helped rein in more
"assertive" approaches.

Methods now used at Guantanamo include limiting
prisoners’ food, denying them clothing, subjecting them
to body-cavity searches, depriving them of sleep for as
much as 96 hours and shackling them in so-called stress
positions, a military-intelligence official said.
Although the interrogators consider the methods to be
humiliating and unpleasant, they don’t view them as
torture, the official said.

The working-group report elaborated the Bush
administration’s view that the president has virtually
unlimited power to wage war as he sees fit, and neither
Congress, the courts nor international law can
interfere. It concluded that neither the president nor
anyone following his instructions was bound by the
federal Torture Statute, which makes it a crime for
Americans working for the government overseas to commit
or attempt torture, defined as any act intended to
"inflict severe physical or mental pain or suffering."
Punishment is up to 20 years imprisonment, or a death
sentence or life imprisonment if the victim dies.

"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 report
asserted. (The parenthetical comment is in the original
document.) The Justice Department "concluded that it
could not bring a criminal prosecution against a
defendant who had acted pursuant to an exercise of the
president’s constitutional power," the report said.
Citing confidential Justice Department opinions drafted
after Sept. 11, 2001, the report advised that the
executive branch of the government had "sweeping"
powers to act as it sees fit because "national security
decisions require the unity in purpose and energy in
action that characterize the presidency rather than
Congress."

The lawyers concluded that the Torture Statute applied
to Afghanistan but not Guantanamo, because the latter
lies within the "special maritime and territorial
jurisdiction of the United States, and accordingly is
within the United States" when applying a law that
regulates only government conduct abroad.

Administration lawyers also concluded that the Alien
Tort Claims Act, a 1789 statute that allows noncitizens
to sue in U.S. courts for violations of international
law, couldn’t be invoked against the U.S. government
unless it consents, and that the 1992 Torture Victims
Protection Act allowed suits only against foreign
officials for torture or "extrajudicial killing" and
"does not apply to the conduct of U.S. agents acting
under the color of law."

The Bush administration has argued before the Supreme
Court that foreigners held at Guantanamo have no
constitutional rights and can’t challenge their
detention in court. The Supreme Court is expected to
rule on that question by month’s end.

For Afghanistan and other foreign locations where the
Torture Statute applies, the March 2003 report offers a
narrow definition of torture and then lays out defenses
that government officials could use should they be
charged with committing torture, such as mistakenly
relying in good faith on the advice of lawyers or
experts that their actions were permissible. "Good
faith may be a complete defense" to a torture charge,
the report advised.

"The infliction of pain or suffering per se, whether it
is physical or mental, is insufficient to amount to
torture," the report advises. Such suffering must be
"severe," the lawyers advise, and they rely on a
dictionary definition to suggest it "must be of such a
high level of intensity that the pain is difficult for
the subject to endure."

The law says torture can be caused by administering or
threatening to administer "mind-altering substances or
other procedures calculated to disrupt profoundly the
sense of personality." The Bush lawyers advised,
though, that it "does not preclude any and all use of
drugs" and "disruption of the senses or personality
alone is insufficient" to be illegal. For involuntarily
administered drugs or other psychological methods, the
"acts must penetrate to the core of an individual’s
ability to perceive the world around him," the lawyers
found.

Gen. Hill said last week that the military didn’t use
injections or chemicals on prisoners.

After defining torture and other prohibited acts, the
memo presents "legal doctrines ... that could render
specific conduct, otherwise criminal, not unlawful."
Foremost, the lawyers rely on the "commander-in-chief
authority," concluding that "without a clear statement
otherwise, criminal statutes are not read as infringing
on the president’s ultimate authority" to wage war.
Moreover, "any effort by Congress to regulate the
interrogation of unlawful combatants would violate the
Constitution’s sole vesting of the commander-in-chief
authority in the president," the lawyers advised.

Likewise, the lawyers found that "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."

To protect subordinates should they be charged with
torture, the memo advised that Mr. Bush issue a
"presidential directive or other writing" that could
serve as evidence, since authority to set aside the
laws is "inherent in the president."

The report advised that government officials could
argue that "necessity" justified the use of torture.
"Sometimes the greater good for society will be
accomplished by violating the literal language of the
criminal law," the lawyers wrote, citing a standard
legal text, "Substantive Criminal Law" by Wayne LaFave
and Austin W. Scott. "In particular, the necessity
defense can justify the intentional killing of one
person ... so long as the harm avoided is greater."

In addition, the report advised that torture or
homicide could be justified as "self-defense," should
an official "honestly believe" it was necessary to head
off an imminent attack on the U.S. The self-defense
doctrine generally has been asserted by individuals
fending off assaults, and in 1890, the Supreme Court
upheld a U.S. deputy marshal’s right to shoot an
assailant of Supreme Court Justice Stephen Field as
involving both self-defense and defense of the nation.
Citing Justice Department opinions, the report
concluded that "if a government defendant were to harm
an enemy combatant during an interrogation in a manner
that might arguably violate criminal prohibition," he
could be justified "in doing so in order to prevent
further attacks on the United States by the al Qaeda
terrorist network."

Mr. LaFave, a law professor at the University of
Illinois, said he was unaware that the Pentagon used
his textbook in preparing its legal analysis. He
agreed, however, that in some cases necessity could be
a defense to torture charges. "Here’s a guy who knows
with certainty where there’s a bomb that will blow New
York City to smithereens. Should we torture him? Seems
to me that’s an easy one," Mr. LaFave said. But he said
necessity couldn’t be a blanket justification for
torturing prisoners because of a general fear that "the
nation is in danger."

For members of the military, the report suggested that
officials could escape torture convictions by arguing
that they were following superior orders, since such
orders "may be inferred to be lawful" and are
"disobeyed at the peril of the subordinate." Examining
the "superior orders" defense at the Nuremberg trials
of Nazi war criminals, the Vietnam War prosecution of
U.S. Army Lt. William Calley for the My Lai massacre
and the current U.N. war-crimes tribunals for Rwanda
and the former Yugoslavia, the report concluded it
could be asserted by "U.S. armed forces personnel
engaged in exceptional interrogations except where the
conduct goes so far as to be patently unlawful."

The report seemed "designed to find the legal loopholes
that will permit the use of torture against detainees,"
said Mary Ellen O’Connell, an international-law
professor at the Ohio State University who has seen the
report. "CIA operatives will think they are covered
because they are not going to face liability."

Write to Jess Bravin at jess.bravin@wsj.com5