Global Policy Forum

Bush Claimed Right to Waive Torture Laws

Associated Press
June 23, 2004

The Bush administration laid out its legal reasoning for denying terror war suspects the protections of international humanitarian law but immediately repudiated a key memo arguing that torture might be justified in the fight against al-Qaida. The release Tuesday of hundreds of pages of internal memos by the White House was meant to blunt criticism that President Bush had laid the groundwork for the abuses of Iraqi prisoners by condoning torture. The president insisted Tuesday: "I have never ordered torture."

But critics said the developments left unresolved some questions about the administration's current guidelines for interrogating prisoners in Iraq and around the world. For example, a 2002 order signed by Bush says the president reserves the right to suspend the Geneva Conventions on treatment of prisoners of war at any time. "These documents raise more questions than they answer," said Sen. Charles Schumer, D-N.Y. "The White House is better off coming clean and releasing all relevant and nonclassified documents."

The White House released Defense Department memos detailing some of the harsh interrogation methods approved and then rescinded by Defense Secretary Donald H. Rumsfeld in 2002 and 2003. The administration continues to refuse to say what interrogation methods are approved for use now. Six soldiers face criminal charges for abusing and humiliating Iraqi prisoners at the Abu Ghraib complex near Baghdad. Another soldier pleaded guilty and received a one-year prison term. The Justice Department has filed criminal assault charges against a contract CIA interrogator, accusing him of beating a prisoner in Afghanistan who later died.

An Aug. 1, 2002, Justice Department memo argues that torture and even deliberate killing of prisoners in the terror war could be justified as necessary to protect the United States. The memo from then-assistant attorney general Jay Bybee also offers a restricted definition of torture, saying only actions that cause severe pain akin to organ failure would be torture. Bybee is now a justice on the 9th U.S. Circuit Court of Appeals.

The Justice Department backed away from Bybee's memo Tuesday. Senior department officials who spoke on condition of anonymity said the memo would be rewritten because it contains advice that is too broad and irrelevant. The officials, who briefed several reporters in a widely publicized news conference, said department policy allowed them to demand anonymity.

The White House also released documents detailing some of the most harsh interrogation methods Rumsfeld approved for use on prisoners at the lockup at the U.S. naval base at Guantánamo Bay, Cuba.

Rumsfeld's Nov. 27, 2002, memo approved several methods which apparently would violate Geneva Convention rules, including:

Putting detainees in "stress positions," such as standing, for up to four hours.
Removing prisoners' clothes.
Intimidating detainees with dogs.
Interrogating prisoners for 20 hours at a time.
Forcing prisoners to wear hoods during interrogations and transportation.
Shaving detainees' heads and beards.
Using "mild, non-injurious physical contact," such as poking.

Prisoners at Abu Ghraib were interrogated for as long as 20 hours at a time, kept hooded and naked, intimidated with dogs and forcibly shaved. Bush and other administration officials have said other treatment at the Iraqi prison, such as forcing prisoners to perform sex acts, beating them and piling them in a naked human pyramid, were unquestionably illegal. Less than two months later, on Jan. 15, 2003, Rumsfeld rescinded approval for those methods without saying why. He appointed a Pentagon panel to recommend proper interrogation methods.

That panel reported to Rumsfeld in April 2003, and its recommendations included prohibiting the removal of clothes, which it said could be considered inhumane treatment under international law. Rumsfeld issued a new set of approved interrogation methods later that month, disallowing nakedness and requiring approval for four techniques: use of rewards or removal of privileges; verbally attacking or insulting the ego of a detainee; alternating friendly and unfriendly interrogators in a "good cop, bad cop" method; and isolation.

Bush had agreed in February 2002 that al-Qaida and Taliban prisoners at Guantánamo Bay were not protected by the Geneva Conventions on prisoners of war because they violated the laws of war themselves. Bush's previously secret Feb. 7, 2002, order also agrees with Justice and Pentagon lawyers that a president can ignore U.S. law and treaties. "I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority to suspend Geneva (conventions) as between the United States and Afghanistan," Bush wrote. "I reserve the right to exercise this authority in this or future conflicts."

Bush and Rumsfeld have said the Geneva Conventions do apply to all prisoners in Iraq. But Rumsfeld acknowledged last week that he ordered a suspected terrorist to be secretly held in Iraq without notifying the International Committee of the Red Cross, which is a violation of the Geneva Conventions. Rumsfeld said he approved an unspecified number of other, similar secret detentions.

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