More secret documents have come to light proving that the systematic torture of prisoners in Iraq and Afghanistan-including the murder of dozens-was not the fault of a few ‘bad apples’ breaking the rules. The torture happened because U.S. forces were following rules set at the highest levels of the U.S. government.
One such memo which recently came to light is dated March 6, 2003 and titled ‘Working Group Report on Detainee Interrogations in the Global War on Terrorism.’ This is the latest in a whole series of post-9/11 Bush administration legal/policy memos giving a green light to torture. The memo was leaked to the Wall Street Journal , which reported on this in its June 7 issue.
The newly revealed memo was drafted by a Pentagon team working under the direction of Defense Department General Counsel William J. Haynes II. Defense Secretary Rumsfeld immediately classified it secret. While focused on the U.S. military jail in Guantanamo, the memo laid out legal arguments and interrogation methods that were soon used in Iraq.
This and other memos not only redefine what constitutes torture in order to ‘legalize’ a raft of brutal, degrading, even murderous punishments. They also articulate a sweeping logic that places the executive branch of government, the president in particular, above past law and practice as well as other branches of government. They have implications far beyond today’s torture scandal-bringing to light a police state in the making. They are part of moves to consolidate even greater power in the executive and the repressive apparatus of the state.
Casting Aside Laws and Treaties
The March 6, 2003 memo was drafted after commanders at Guantanamo complained in late 2002 that their interrogators weren’t able to extract enough information using ‘conventional’ methods. According to the Journal , ‘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…. People were trying like hell how to ratchet up the pressure.’ ‘
One problem facing the U.S. military was the Geneva Conventions, to which the U.S. is a signatory. The Third Geneva Convention states that prisoners of war and captured insurgents may not be ‘threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind’ in order to force them to talk. The Fourth Geneva Convention states that ‘no physical or moral coercion shall be exercised against’ people living under occupation, especially ‘to obtain information from them or from third parties.’
The U.S. government also ratified the UN Convention Against Torture in 1994, which 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,’ that orders from superiors ‘may not be invoked as a justification of torture,’ and that violations of these Conventions could constitute crimes, including war crimes. The related U.S. federal Torture Statute makes torture, which is defined as any act intended to ‘inflict severe physical or mental pain or suffering,’ a crime punishable by up to 20 years in prison, or a death sentence or life imprisonment if the torture victim dies.
The March 6, 2003 memo demonstrates that the leading forces of the U.S. imperialist ruling class-hell-bent on asserting U.S. global power more forcefully around the world and crushing anything standing in their way-saw these laws and treaties, including U.S. laws, as impediments to be ruthlessly cast aside.
The memo did just that by redefining what constitutes torture, by putting forward a series of legal arguments for limiting or disregarding anti-torture laws that essentially give the executive branch unlimited power, and by proposing various legal defenses for those involved-from high officials to the tortures on the ground.
The Wall Street Journal headlined that the memo ‘Set Framework for Use of Torture.’ A month after the memo, Rumsfeld officially designated 24 new-and secret-interrogation methods. This was at a time when the U.S. occupation troops were beginning massive round-ups of Iraqis.
The U.S. government is attempting to cover up these horrors by publicly claiming that the methods are ‘humane’ and that it abhors torture, while refusing to disclose its interrogation methods or any of its torture memos-including the 40-plus page appendix to the March 6, 2003 document that spells out newly authorized interrogation practices.
Putting the Presidency Beyond Law and Congress
The March 6, 2003 memo attempts to break through the constraints of past law and treaties on torture in a number of ways.
First and foremost, it argues, according to the Journal , that ‘the president has virtually unlimited power to wage war as he sees fit, and neither Congress, the courts nor international law can interfere’ and therefore ‘neither the president nor anyone following his instructions was bound by the federal Torture Statute.’ This is justified in the name of ‘obtaining intelligence vital to the protection of untold thousands of American citizens’ and by arguing that a president as commander-in-chief has unlimited power during times of war.
One military lawyer involved in drafting the memo said that the Pentagon leadership was attempting to assert ‘presidential power at its absolute apex.’
The memo also argued that there was nothing Congress could do about this assertion of presidential power. ‘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 memo states. The president has a ‘constitutionally superior position’ to Congress and an ‘inherent authority’ to prosecute war, while ‘Congress lacks authority-to set the terms and conditions under which the president may exercise his authority as commander-in-chief to control the conduct of operations during a war.’
The document also anticipates legal defenses for any accused of torture-yet more proof that the U.S. government was consciously planning on torturing detainees. The memo argued that U.S. leaders ordering torture and war crimes as well as those carrying them out have several ‘defenses.’
One is the ‘necessity’ of torture to extract information to prevent an attack. Another is ‘superior orders’-that the torturers were just following orders. This is the same argument tried by the Nazis at Nuremberg, where this defense was rejected-it is now being revived by Bush and company.
The lawyers who crafted the memo claim that ‘constitutional principles’ prevent punishing officials ‘for aiding the president in exercising his exclusive constitutional authorities’ and that neither Congress nor the courts could ‘require or implement the prosecution of such an individual.’
The memo also advised that Bush should sign a presidential directive authorizing torture in order to protect his subordinates and minions from prosecution. This would work, the memo argued, because authority to set aside the laws is ‘inherent in the president.’ It is not yet known whether Bush has issued such a directive.
The March 6 memo also attempts to legalize torture by redefining it. Current law defines the infliction of pain and suffering as torture. But the Pentagon memo argues, ‘The infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture.’ Instead, the suffering must be ‘severe’ and ‘of such a high level of intensity that the pain is difficult for the subject to endure.’ Such a definition opens the floodgates to any and all manner of abuse, giving the torturers themselves the power to determine what a subject could or could not ‘endure.’
Current law says that 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 argue that the law ‘does not preclude any and all use of drugs’ and that ‘disruption of the senses or personality alone is insufficient’ to constitute torture. Instead, the bar is raised much higher: to be illegal, forced drugging or psychological stress ‘must penetrate to the core of an individual’s ability to perceive the world around him.’ Again, the range of brutalities is greatly expanded, and the power to decide what is torture left to the judgment of U.S. interrogators.
Widespread Shock,Official Coverup
Both progressive and mainstream lawyers and legal observers have expressed shock at the unprecedented sweep of the arguments put forward in the March 6 memo and its sharp break from legal tradition and practice.
Consider the following mainstream authorities cited by the Los Angeles Times (6/10): One war law expert at Tufts University called the memo ‘a claim of unlimited executive power.’ A University of Texas law professor declared, ‘It can’t be right. It is just wrong to say the president can do whatever he wants, even if it is against the law.’ A former judge advocate for the Marines stated, ‘It’s an argument I have never seen made before-that the commander-in-chief’s war-fighting powers trump the restrictions in the Geneva Convention.’ A retired Judge Advocate General for the Navy said, ‘If the president’s inherent authority as commander-in-chief trumps domestic and international law, where is the limit? If every sovereign can ignore the law, then no one is bound by it.’
Even the imperialist and pro-war Washington Post editorialized (June 9) that the memo followed ‘the logic of criminal regimes, of dictatorships around the world that sanction torture on grounds of `national security.’ ‘
The Bush leadership continues to deny and double-talk, while attempting to cover up the extent of U.S. torture and the trail leading right to the top levels of the White House and Pentagon, including Bush himself. They steadfastly refuse to disclose either the interrogation methods being used or the documents that spell out their rationales.
Attorney General John Ashcroft’s June 8 appearance before a Senate panel exemplified the Orwellian lies at work.
Ashcroft declared, ‘This administration rejects torture’ and stated, ‘The president of the United States has not ordered any conduct that would violate the Constitution of the United States, that would violate not one of the laws enacted by the Congress, or that would violate any of the various treaties.’ But he refused to discuss either the various torture memos that have leaked into the press or the legal reasoning contained in those various memos. He refused to turn any of the memos over to Congress-and refused to cite any legal reason (such as executive privilege) for doing so. In other words, Ashcroft was putting into practice the very executive-branch-above- all viewpoint articulated in the March 6, 2003 memo.
Larry Everest is a correspondent for the Revolutionary Worker newspaper and author of Oil, Power & Empire: Iraq and the U.S. Global Agenda. His website is: www.larryeverest.com
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