Life or Liberty

June 16, 2004

Government goes to great pains to legalize torture

Bush and Rumsfeld painted the U.S. abuse of prisoners in Iraq as the work of a few individuals. So how do you explain this August 1, 2002 memo from Justice Department's Office of Legal Counsel for Alberto R. Gonzales, counsel to President Bush?

"Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A" (pdf)

Source: Justice Dept. Memo Says Torture 'May Be Justified'
The Washington Post

What the memo painstakingly does is explain how under U.S. law (Sections 2340–2340A of title 18 of the United States Code), anything you do to a prisoner short of death, permanent injury, or lasting mental harm does not constitute torture:

"Because the acts inflicting torture are extreme, there is (a) significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture." (p. 46)

The memo also helpfully points out:

"...both the European Court on Human Rights and the Israeli Supreme Court have recognized a wide array of acts that constitute cruel, inhuman, or degrading treatment or punishment, but do not amount to torture. Thus, they appear to permit, under international law, an aggressive interpretation as to what amounts to torture..."

This, plus Bush's June 10 comments:

QUESTION: Mr. President, the Justice Department issued an advisory opinion last year declaring that, as commander in chief, you have the authority to order any kind of interrogation techniques that are necessary to pursue the war on terror. Were you aware of this advisory opinion? Do you agree with it? And did you issue any such authorization at any time?
BUSH: The authorization I issued was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people.
QUESTION: Have you seen the memos?
BUSH: I can't remember if I've seen the memo or not, but I gave those instructions.

...this gives the sense that despite their recent claims of being "sickened" by the Abu Ghraib photos, Bush and Rumsfeld specifically approved the tactics in Iraq and Guantanamo, particularly when you read the laundry list of practices the memo specifically legalizes: "wall standing," "hooding," subjection to noise, sleep deprivation, deprivation of food and drink, and humiliation.

The memo authorizes the Executive (Bush) to give what orders he deems necessary to conduct interrogations:

In order to respect the President's inherent constitutional authority to manage a military campaign against al Queda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority.
(italics added, though the copy of the memo was also hand-underlined here by someone)

Previously on this site I focused exclusively on the detention of immigrants within the U.S. But the lines are starting to meet, as I'll get into when I have more time.

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