Tortuous definitions

Two "secret" Bush administration memos link top-level US officials to the Abu Ghraib case, writes Faiza Rady

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It has been a bad week for United States President George W Bush following the leak to The Wall Street Journal of two classified memos addressing torture as a method of interrogation.

The Justice Department prepared the first memo in August 2002 as a guideline for the CIA outlining the limits of interrogation under "duress". A second memo on the same subject, dated March 2003, was addressed to Defense Secretary Donald Rumsfeld. The complete draft document was classified "secret" by Rumsfeld and scheduled for declassification in 2013.

In the wake of last month's Abu Ghraib prison scandal where the torture of Iraqi prisoners by American soldiers was caught on film, reporters pressed Bush to clarify whether the leaked memos proved that he, or a number of high officials in his administration, had in fact established torture as a policy in their contentious "war on terror".

The American president vehemently denied these charges and continued to absolve his administration as he had done consistently, describing Abu Ghraib as the work of a few misguided soldiers, "a few bad apples who dishonoured our country and disregarded our values". As for Bush himself, he contended that he was beyond reproach. "The authorisation I issued was that anything we did would conform to US laws and would be consistent with international treaty obligations," declared Bush.

The president's assertions, however, did not wash well with American lawmakers, who interrogated US Attorney- General John Ashcroft on the subject on 8 June. Ashcroft airily dismissed the memos as mere "legal opinion" and refused to reveal advice he gave the president or discuss it with Congress.

He also categorically refused to link incidents of torture at Abu Ghraib with the memos. "The kind of atrocities depicted in the photographs are being prosecuted by this administration. They are rejected by this administration," said Ashcroft.

While it is true that the US Defense Department is currently investigating the treatment of prisoners in Iraq and Afghanistan, there has been no attempt to scrutinise the senior chain of command or link the torture orders to the Pentagon and other government agencies. Moreover, the Defense Department can hardly qualify as an independent investigator of the military.

Over and above the attorney-general's attempts to launder the record, critics contend that the "legal opinions" expressed in the memos ominously foreshadow Abu Ghraib and other equally sinister detention centres like the Guantanamo naval airbase in Cuba, the CIA interrogation centre at Bagram airbase in Afghanistan and other undisclosed facilities in Kandahar, Jalabad and Asadabad. "If anyone still thinks that the only people who dreamt up the idea of torturing prisoners were just some privates and corporals at Abu Ghraib, this document should put that myth to rest," said Tom Malinowski, Washington director of Human Rights Watch.

According to media reports, the Bush administration's interest in concocting a legal case for torture first surfaced in Guantanamo. The Wall Street Journal reported that an American official who helped write the second memo explained the situation as coming to a head with a number of hard-to-crack detainees at Guantanamo. "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." As a result senior officers at Guantanamo requested a "rethinking of the whole approach to defending your country when you have an enemy that does not follow the rules," said the official.

In this context the Journal reported that the memos purposely circumvent international treaties like the 1949 Geneva Conventions, the 1994 International Convention Against Torture and the federal Torture Statute -- all ratified by the US -- and argue that "obtaining intelligence vital to the protection of American citizens" supersedes legal restrictions of ratified human rights covenants. Thus, the memos ultimately justify torture as a method of interrogation.

A legal working group -- including top civilian and military lawyers, appointed by the Defense Department's General Counsel William J Haynes II and directed by Air Force General Counsel Mary Walker -- penned the memos, which concluded that the US president has the authority to order torture in his role as the nation's commander- in-chief. This concept was reportedly peddled by high- powered administration insiders who were pulling the strings during the group's meetings.

Human Rights Watch reported a military lawyer as saying that political appointees heading the working group sought to assign the president unlimited authority on matters of torture to exercise "presidential power at its absolute apex". "In order to respect the president's inherent constitutional authority to manage a military campaign [the prohibition of torture] must be construed as inapplicable to interrogations undertaken pursuant to his commander-in- chief authority," reads the text.

This interpretation, however, blatantly contradicts the UN's Convention Against Torture (CAT), ratified by the US 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." The CAT also spells out that orders from superiors "may not be invoked as a justification of torture".

Having established the president's absolute powers in times of war -- duly liberated from the shackles of domestic and international laws -- the memos proceeded to build a case for the defence of torturers who are also criminalised under the CAT. The memos argue that workers in the field, and their superiors, could argue the case of "necessity". "Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law."

This, according to the text, may include murder, since the "necessity defence can justify the intentional killing of one person ... so long as the harm avoided is greater."

Other less tortuous arguments in defence of torture and murder simply revert to the Nazi posture taken at the Nuremberg trials. Also known as "the Nuremberg defence", this argument is based on the military chain of command according to which "superior orders may be inferred to be lawful and are disobeyed at the peril of the subordinate." As in the memos' other "legal" arguments, the Nuremberg defence throws all US domestic and international conventions overboard. The Nuremberg defence also contradicts the US military's own code of honour, according to which soldiers are excused of not following orders which may be viewed as criminal.

In the US and around the world, rights organisations denounced the memos as a Bush administration attempt to cover up their war crimes with a thin veneer of legality. "Effectively what you've got here is a group of government attorneys trying to justify war crimes," said Scott Horton, president of the International League for Human Rights.