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Tuesday, June 22, 2004

Torture, Torture Everywhere  

From the AP wire (courtesy of Zemblan patriot B.K.):
President Bush claimed the right to waive anti-torture laws and treaties covering prisoners of war after the invasion of Afghanistan, and Defense Secretary Donald Rumsfeld authorized guards to strip detainees and threaten them with dogs, according to documents released Tuesday.

The documents were handed out at the White House in an effort to blunt allegations that the administration had authorized torture against al-Qaida prisoners from Afghanistan and Iraq. ''I have never ordered torture,'' Bush said a few hours before the release.

The Justice Department, meanwhile, disavowed a memo written in 2002 that appeared to justify the use of torture in the war on terror. The memo also argued that the president's wartime powers superseded anti-torture laws and treaties.

That 50-page document, dated Aug. 1, 2002, will be replaced, senior Justice Department officials said, speaking on condition of anonymity. A new memo will instead narrowly address the question of proper interrogation techniques for al-Qaida and Taliban detainees, the officials said, citing department policy for requesting anonymity on their comments.

Bush outlined his own views in a Feb. 7. 2002, document regarding treatment of al-Qaida detainees from Afghanistan. He said the war against terrorism had ushered in a ''new paradigm'' and that terrorist attacks required ''new thinking in the law of war.'' Still, he said prisoners must be treated humanely and in accordance with the Geneva Conventions.

''I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time,'' the president said in the memo, entitled ''Humane Treatment of al-Qaida and Taliban Detainees.'' [see below -- S.]

In a separate Pentagon memo, dated Nov. 27, 2002, the Defense Department's chief lawyer, William J. Haynes II, recommended that Defense Secretary Donald Rumsfeld approve the use of 14 interrogation techniques on detainees at Guantanamo Bay, such as yelling at a prisoner during questioning and using ''stress positions,'' like standing, for up to four hours.

Haynes also recommended approval of one technique among harsher methods requested by U.S. military authorities at Guantanamo: use of ''mild, non-injurious physical contact such as grabbing, poking in the chest with the finger and light pushing.''

Among the techniques that Rumsfeld approved on Dec. 2, 2002, in addition to that one, the yelling and the stress positions:

  • Use of 20-hour interrogations.
  • Removal of all comfort items, including religious items.
  • Removal of clothing.
  • Using detainees' ''individual phobias such as fear of dogs to induce stress.''
In a Jan. 15, 2003, note, Rumsfeld rescinded his approval and said that a review would be conducted to consider legal, policy and operational issues relating to interrogations of detainees held by the U.S. military in the war on terrorism.

Rumsfeld's decision was prompted at least in part by objections raised by some military lawyers who felt that the techniques approved for use at Guantanamo Bay might go too far, officials said earlier this year.
The AP story above notes that the President accepted that he had "the authority under the Constitution to suspend Geneva as between the United States and Afghanistan," but declined "to exercise that authority at this time." But the story omits the central legal evasion Bush used to sidestep Geneva: declaring that, "while the United States would adhere to the Geneva Conventions in the conduct of the war in Afghanistan, captured Taliban and Qaeda fighters would not be given prisoner of war status under the conventions." Michael Isikoff's Newsweek story from last month explains how that formulation was arrived at:
One lawyer involved in the interagency debates over the Geneva Conventions issue recalled a meeting in early 2002 in which participants challenged [John] Yoo, a primary architect of the administration's legal strategy, when he raised the possibility of Justice Department war crimes prosecutions unless there was a clear presidential direction proclaiming the Geneva Conventions did not apply to the war in Afghanistan. The concern seemed misplaced, Yoo was told, given that loyal Bush appointees were in charge of the Justice Department.

"Well, the political climate could change," Yoo replied, according to the lawyer who attended the meeting. "The implication was that a new president would come into office and start potential prosecutions of a bunch of ex-Bush officials," the lawyer said. (Yoo declined comment.)

This appears to be precisely the concern in Gonzales's memo dated January 25, 2002, in which he strongly urges Bush to stick to his decision to exempt the treatment of Taliban and Al Qaeda fighters from the provisons of the Geneva Conventions. (Powell and the State Department had wanted the U.S. to at least have individual reviews of Taliban fighters before concluding that they did not qualify for Geneva Convention provisions.)

One reason to do so, [White House counsel Alberto] Gonzales wrote, is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act." He added that "it is difficult to predict with confidence what actions might be deemed to constitute violations" of the War Crimes Act just as it was "difficult to predict the needs and circumstances that could arise in the course of the war on terrorism." Such uncertainties, Gonzales wrote, argued for the President to uphold his exclusion of Geneva Convention provisions to the Taliban and Al Qaeda detainees who, he concluded, would still be treated "humanely and, to the extent appropriate and consistent with military necessarity, in a manner consistst with the principles" of the Geneva Convention on the treatment of prisoners of war.

In the end, after strong protests from Powell, the White House retreated slightly. In February 2002, it proclaimed that, while the United States would adhere to the Geneva Conventions in the conduct of the war in Afghanistan, captured Taliban and Qaeda fighters would not be given prisoner of war status under the conventions. It is a rendering that Administration lawyers believed would protect U.S. interrogators or their superiors in Washington from being subjected to prosecutions under the War Crimes Act based on their treatment of the prisoners.

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