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Making Torture Legal


Reading through the memoranda written by Bush administration lawyers on how prisoners of the “war on terror” can be treated is a strange experience. The memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison. Avoiding prosecution is literally a theme of the memoranda. Americans who put physical pressure on captives can escape punishment if they can show that they did not have an “intent” to cause “severe physical or mental pain or suffering.” And “a defendant could negate a showing of specific intent…by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute.”

These quotations are from a draft report to Secretary of Defense Donald Rumsfeld by an ad hoc group of lawyers he chose, mostly political appointees in the Defense and other departments, to advise him on interrogation techniques for prisoners at Guantánamo Bay. The report is dated March 6, 2003; on the title page it says, “Classified by: Secretary Rumsfeld.”

Another theme in the memoranda, an even more deeply disturbing one, is that the President can order the torture of prisoners even though it is forbidden by a federal statute and by the international Convention Against Torture, to which the United States is a party.

The idea that presidential power overrides treaties and congressional laws appeared soon after the terrorist attacks of September 11, 2001. John Yoo, a professor at the University of California in Berkeley, was then a deputy assistant attorney general. He wrote several memos in late 2001 and then, in collaboration with Robert J. Delahunty, another Justice Department lawyer, an important paper dated January 9, 2002. It was addressed to the Defense Department’s general counsel, William J. Haynes II. “Restricting the President’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious,” the memo said.

In August 2002 the Justice Department prepared a further memorandum for the White House. The author was Assistant Attorney General Jay S. Bybee, head of the department’s Office of Legal Counsel. The fifty-page memorandum* embraced the constitutional argument. In a war like the present one, it said, “the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply [the criminal law against torture] in a manner that interferes with the President’s direction of such core matter as the detention and interrogation of enemy combatants thus would be unconstitutional.”

The Defense Department memorandum of March 2003 incorporated the ideas and much of the language in the Bybee memo. It expressed the idea of impervious presidential power in sweeping terms:

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…. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield…. Any effort by Congress to regulate the interrogation of unlawful combatants [terrorists] would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.

The March 6 memorandum adds a helpful warning to torturers: “As this authority is inherent in the President, exercise of it by subordinates would be best if it can be shown to have been derived from the President’s authority through Presidential directive or other writing.”

Both the Bybee and Defense Department memoranda parse the laws against torture in minute detail to suggest defenses against potential torture charges. One remarkable suggestion is that an interrogator who harmed a prisoner could rely on the argument of “self-defense” as a legal justification—defense not of himself but of the nation:

As [the Department of Justice] has made clear in opinions involving the war on al Qaida, the nation’s right to self-defense has been triggered by the events of September 11. 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 Qaida terrorist network. In that case, DOJ believes that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.

The memoranda also repeatedly seek to give narrow definitions of prohibited acts. The Defense Department report said the administration of drugs to prisoners would violate a prohibition on disrupting “profoundly the sense or personality” of a prisoner only if it produced “an extreme effect” and was calculated to do so. The Bybee memorandum said that to be torture, treatment of a prisoner must inflict more than moderate or fleeting pain: torture “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

Another argument is especially ingenious—or perhaps the proper adjective is hypocritical. The federal statute against torture is limited to acts committed “outside the United States.” The Guantánamo Bay naval base “is included within the special naval and maritime jurisdiction of the US,” the Defense Department memorandum of March 2003 says, so torture there would not be covered. In the Guantánamo cases that are now awaiting decision in the Supreme Court, the Bush administration strenuously argued the opposite: that Guantánamo is under Cuban sovereignty and hence is outside the jurisdiction of United States courts.

One other large subject is treated in the Bush administration’s various legal documents. That is whether the prisoners at Guantánamo Bay are covered by the Geneva Conventions, to which the United States and almost all other countries are parties and which lay down rules for the humane treatment of prisoners taken in conflicts. The Third Geneva Convention, in particular, provides a mechanism for deciding whether someone in custody is a regular soldier in an opposing force, a saboteur or terrorist, or an innocent civilian picked up by chance. The mechanism required is a hearing before a “competent tribunal.”

In the 1991 Gulf War the US military held 1,196 such hearings before military tribunals. In almost 75 percent of these the prisoners were found by the tribunals to be innocent civilians, and were freed. But after the war in Afghanistan, successive government legal memoranda found that neither al-Qaeda members nor Taliban soldiers qualified for treatment under the Third Geneva Convention. The discussion began with the Yoo-Delahunty memorandum of January 9, 2002.

The memo quickly concluded that the Geneva Convention dealt only with state parties, and al-Qaeda was not a state. As for Taliban soldiers, it argued that Afghanistan under the Taliban was a “‘failed state’ whose territory had been largely overrun and held by violence by a militia or faction rather than by a government.” One can readily agree that the Taliban was a cruel and violent movement, but its government controlled all of the country except a small sliver in the north.

Shortly after that memorandum of January 9, 2002, President Bush made a finding that the Geneva Conventions did not cover the prisoners held at Guantánamo. All of them, he found, were “unlawful combatants,” a term not found in the Geneva Conventions. Secretary of State Colin Powell asked the President to reconsider the decision. In a memorandum to the White House counsel, Alberto Gonzales, and the national security adviser, Condoleezza Rice, he argued that the Third Geneva Convention should cover the Afghan conflict. He said the prisoners could still be found to be “unlawful combatants” under the Third Geneva Convention, but only after individual hearings for all who requested them.

The debate between the two views on Geneva was really a debate between traditional American views of law and the radically different outlook of the Bush lawyers. The legal adviser to the State Department, William H. Taft IV, in a memo of his own to Gonzales, supported Powell’s position, saying that it would demonstrate that the United States “bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.” Secretary Powell said that making Geneva inapplicable at Guantánamo would “reverse over a century of US policy and practice… and undermine the protections of the law of war for our troops….”

Counsel Gonzales, in a January 25, 2002, memorandum to the President, rejected the State Department’s arguments. “The nature of the new war” on terrorism, he wrote, “places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians…. This new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners” and ren- ders other Geneva provisions “quaint.” President Bush agreed.

The Bush administration’s order to treat all the prisoners at Guantánamo as “unlawful combatants” was an extraordinary unilateral judgment on the fate of hundreds of prisoners. How could anyone know that they were all terrorists without any fact-finding process? (And even suspected terrorists are protected by the Convention Against Torture.)

A Pentagon spokesman, Bryan Whitman, said this May in response to charges about the treatment of Guantánamo prisoners: “These are people who are unlawful combatants, picked up on the battlefield.” We know, however, that at least some were not picked up on the Afghan battlefield but arrested in countries as far away as Zambia, turned over to American authorities, and sent to Guantánamo. And some intelligence officers say that many of those held at Guantánamo were civilian Afghans picked up by mistake during the war.

Secretary Powell predicted, correctly, that making the Geneva Conventions inapplicable at Guantánamo would hurt the United States seriously in world opinion. But Secretary Rumsfeld dismissed foreign criticism, in 2002, as “isolated pockets of international hyperventilation.”


The issues raised by the Bush administration’s legal assertions in its “war on terror” are so numerous and so troubling that one hardly knows where to begin discussing them. The torture and death of prisoners, the end result of cool legal abstractions, have a powerful claim on our national conscience. They are described in horrifying detail in a report published recently by Human Rights Watch, “The Road to Abu Ghraib.” But equally disturbing, in its way, is the administration’s constitutional argument that presidential power is unconstrained by law.

President Bush and his administration have used the September 11 attacks again and again as an argument for expanded executive power. A signal example is the claim that the President can designate any American citizen as an “enemy combatant” and have him or her imprisoned in soli-tary confinement, indefinitely, without trial or access to counsel. That is the claim now before the Supreme Court in the cases of José Padilla and Yasser Hamdi.

The assertion in the various legal memoranda that the President can order the torture of prisoners despite statutes and treaties forbidding it was another reach for presidential hegemony. The basic premise of the American constitutional system is that those who hold power are subject to the law. As John Adams first said, the United States is meant to be a government of laws, not men. For that Bush’s lawyers seem ready to substitute something like the divine right of kings.

  1. *

    The text is available at: www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf. The text of the March 6, 2003, Defense Department memorandum is available at: news.findlaw.com/wp/docs/torture /30603wgrpt.html.

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