Prisoner Abuse Scandal Rocks Legal, Medical Worlds

By Jim Lobe

WASHINGTON - The scandal surrounding the torture and abuse by U.S. soldiers of detainees at Abu Ghraib prison in Iraq and in other theatres of the Bush administration’s ’’war against terrorism’’ is producing unexpected aftershocks in the legal, medical and reporting professions.

The most active and aroused is the legal profession. Disciplinary actions in several state bar associations are reportedly being launched against government lawyers who prepared memoranda that appeared to justify the use of torture in defiance of U.S. and international law.

A blistering statement that accused the lawyers of failing in their ’’high obligation to defend the constitution’’ was released this week by 130 prominent jurists, including 12 former federal judges and a former director of the Federal Bureau of Investigation (FBI).

The statement, in the form of a letter to President George W Bush, members of Congress, and the cabinet members whose legal advisers were responsible for the memos, came on the eve of a meeting this weekend by the largest national lawyers’ association, the American Bar Association (ABA).

The group’s 400,000 members are expected to vote on resolutions that denounce the use of torture, urge the administration to establish an independent commission with subpoena power to fully investigate U.S. detention and interrogation practices, and tighten existing anti-torture laws, among other steps.

’’The use of torture and cruel, inhuman or degrading treatment by United States personnel in the interrogation of prisoners captured in the Afghanistan and Iraq conflicts has brought shame on the nation and undermined our standing in the world’’, according to a 20-page brief in support of the resolutions.

’’It is incumbent upon this organisation, which makes the rule of law its touchstone, to urge the U.S. government to stop the torture and abuse of detainees, investigate violations of law, and prosecute those who committed, authorised, or condoned those violations, and assure that detention and interrogation practices adhere faithfully to the constitution, laws and treaties of the United States and related customary international law,’’ it adds.

The country’s most prestigious medical journal, the ’New England Journal of Medicine’, published an article last week by noted author-psychiatrist Robert Jay Lifton that called on doctors, nurses and medics who have attended detainees in Iraq and elsewhere to speak out about their knowledge of what took place — an appeal echoed by Boston-based Physicians for Human Rights (PHR).

’’There is increasing evidence that U.S. doctors, nurses and medics have been complicit in torture and other illegal procedures in Iraq, Afghanistan and Guantanamo Bay’’, Lifton wrote in an article entitled ’Doctors and Torture.’

’’We know that medical personnel have failed to report to higher authorities wounds that were clearly caused by torture and that they have neglected to take steps to interrupt this torture’’, he added, citing recent media reports and noting that military as well as civilian medical personnel are bound by a global ban on medical complicity in torture, the 1975 World Medical Association Declaration of Tokyo.

Reports that military interrogators were given access to the medical records of detainees despite complaints by the International Committee of the Red Cross (ICRC) and that medical personnel signed death certificates attributing the cause of death to cardiovascular disease in order to ’’camouflage’’ fatal abuse were cited as particularly disturbing.

’’The obligation of a physician is to provide for the well-being of patients under their care, and if he or she is engaged in activities that would harm patients — or is silent about those activities — that is a very serious issue for the profession’’, said PHR Director Leonard Rubinstein, who noted that the American Medical Association (AMA) has called for a ’’formal review’’ of U.S. interrogation practices, including the role played by medical personnel.

At the same time, mainstream journalists, who were already under heavy fire by media critics for failing to be more sceptical about administration pre-war claims regarding Iraq’s weapons of mass destruction (WMD) programmes and ties to al-Qaeda terrorists, are now being assailed for not paying more attention to early reports by human rights groups about abuses in both Iraq and Afghanistan.

’’Why did it take so long for the news media to break the story of prisoner abuse at Abu Ghraib’’? asked a cover story in the current edition of the American Journalism Review (AJR) entitled ’Missed Signals’. It noted that the media reprinted brief Pentagon news releases about deaths in custody and even the launch of an investigation into ’’incidents of detainee abuse,’’ but failed to follow through until CBS’ ’60 Minutes II’ first broadcast the now-infamous photos from Abu Ghraib in late April.

Those photos, which are widely considered the single biggest blow to U.S. efforts to win ’’hearts and minds’’ in Iraq and throughout the Arab world, led to a flood of leaks and media stories, as well as a series of congressional hearings, which eventually produced the disclosure of a series of memos written by political appointees at the Justice Department, the Pentagon and the White House.

Those memos, which dealt with the war powers of the president, torture, and the application of U.S. and international legal bans on the use of torture, have been blamed for contributing to a sense throughout the government and the military that the ’’war on terrorism’’ was a different kind of conflict, one in which normal rules, such as treatment of detainees as required by the Geneva Conventions, did not necessarily apply.

The memos shocked the legal community both because they were drafted by members in good standing of the profession and because they asserted legal principles that were seen as far-fetched, if not outlandish, not just by career military and State Department attorneys who strongly opposed them, but even by a number of legal experts who normally defend the administration’s aversion to international law.

One Pentagon memorandum, for example, asserts that the president in his role as ’’commander-in-chief’’ may choose to ignore laws, treaties or even the constitution regarding the treatment of prisoners in wartime.

Another Justice Department memo asserts argues the president has the authority to approve the infliction of extreme physical distress by redefining ’’torture’’ as ’’equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death’’.

Similarly, mental pain and suffering does not amount to torture in the memo-writers’ view, unless ’’it results in significant psychological harm of significant duration, eg, lasting for months or even years’’.

Finally, memos by Justice and Defence Department political appointees presented a series of arguments that they claimed could be marshalled as defences against U.S. torture statutes and the United Nations Convention Against Torture (CAT), which has been ratified by the United States.

Most career attorneys in the Justice, Defence and State Departments strongly opposed the positions taken in the memos but were overruled by senior political appointees.

’’The most senior lawyers in the Department of Justice, the White House, Department of Defence and the vice president’s office sought to justify actions that violate the most basic rights of all human beings," according to the statement by the jurists, who included eight past ABA presidents.

Among those who have been named in published accounts as responsible for the memos are former Assistant Attorney General Jay Bybee, who has since been confirmed as a federal judge; the Pentagon’s general counsel, William Haynes II, who has been nominated for a federal judgeship; Undersecretary of Defence for Policy Douglas Feith; Vice President Dick Cheney’s counsel, David Addington; the former head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith; and John Yoo, who was also with the OLC.

’’The lawyers who prepared and approved these memoranda have failed to meet their professional obligations," the statement, which was also signed by former FBI director William Sessions, former Attorney General Nicholas Katzenbach and the heads of several U.S.-based international human rights groups, asserted.

’’They have counselled individuals to ignore the law and offered arguments to minimise their exposure to sanction or liability for doing so’’, it noted, adding that in several cases the memoranda ignored well-established precedents, including Supreme Court decisions, that directly contradicted their positions — a particularly serious charge against attorneys at the OLC, whose role is to provide attorneys general with opinions that are firmly grounded in accepted law.

Goldsmith resigned in June to take a position at Harvard Law School, while Yoo, who has aggressively defended the memos since they were leaked, is currently based at the neo-conservative American Enterprise Institute (AEI) and at the University of California’s Boalt Hall School of Law in Berkeley.

The appointments of Goldsmith and Yoo have provoked considerable controversy at both law schools, among both their faculties and student bodies. During graduation ceremonies at Boalt Hall in June, more than one-quarter of the graduating class wore red armbands to protest Yoo’s presence on the faculty. (IPS)

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