The March 6, 2003 draft memo from the Defense Department, which was obtained in part by NEWSWEEK, is titled a “WORKING GROUP REPORT ON DETAINEE INTERROGATIONS IN THE GLOBAL WAR ON TERRORISM” and explores numerous legal defenses for acts that might be construed as torture. (Click here to read the memo). It was first disclosed by The Wall Street Journal on Monday. Along with several other memos to come out of the Justice Department’s Office of Legal Counsel–two them previously disclosed by NEWSWEEK–the 56-page DoD memo is believed to form the main basis for legal arguments justifying intense interrogation methods used at Guantanamo Bay. Some of those methods were later believed to be adopted for use at Abu Ghraib prison in Iraq.
It is not clear to what extent the memo’s arguments eventually became administration policy. But a number of these arguments appear to provide a clear basis for many of the detention and interrogation practices that the Red Cross and witnesses allege were used against the Taliban and Al Qaeda as well as Iraqis. Among these practices were the selective removal of clothes and food, limiting a prisoner’s access to light, and forcing a prisoner into “stress” positions for long periods of time.
Perhaps the most striking part of the memo is its argument that the president, as commander-in-chief, is not bound to observe international laws against torture, or even a 1996 U.S. law enacted to comply with the U.N.-sponsored Convention Against Torture. “In order to respect the President’s inherent constitutional authority to manage a military campaign, [the U.S. law prohibiting torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority,” the memo says. “In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas.”
Some legal scholars contacted by Newsweek were appalled by what they called the unsoundness of such arguments. “There is little jurisprudential basis for this,” said Scott Horton, a well-known human-rights lawyer based in New York. “It is arguing the president’s unilateral right to interpret the law, unrestricted by the views of Congress.” Philip Heymann of Harvard Law School added: “The country has a right to expect far better from the [government] lawyers who are responsible for keeping the president’s actions legal.” Attorney General John Ashcroft, grilled at a congressional hearing on Tuesday over this and other memos, said, “This administration rejects torture.”
The memo also dwells heavily on the legal standard a potential future prosecutor would have to meet in order to prove that guards were engaged in torture. The memo concludes, for example, that because Section 2340 of the U.S. anti-torture law “requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s precise objective,” as opposed to “general intent.”
The memo also spends much time exploring legal arguments that the U.S. Constitution’s Eighth Amendment ban on “cruel and unusual punishment,” and the “due process” provisions in the Fifth and Fourteenth amendments, are limited in their applications to interrogations. Citing the stricture against cruel and unusual punishment, for example, the memo argues that guards must show “deliberate indifference” to a prisoner’s fate. It also cites approvingly a court case from 2002 that finds “a prisoner alleging excessive force must demonstrate that the defendant acted ‘maliciously and sadistically to cause harm.’’'
“It is not enough for a prisoner to show that he has been subjected to conditions that are merely ‘restrictive and even harsh,” the memo concludes. It notes that the Supreme Court has established that an Eighth Amendment violation means ‘only those deprivations denying “the minimal civilized measures of life’s necessities.”
Only in a last section called “Considerations Affecting Policy” does the memo note that the Army Field Manual 30-15, setting out basic doctrine on intelligence questioning, states that interrogation techniques are to conform to international law and the Uniform Code of Military Justice.
