WASHINGTON—A March 2003 Pentagon report arguing that the United States isn't bound by laws and treaties against torture has caused a major rift between Bush administration officials seeking maximum leeway to question prisoners and military lawyers who fear reprisals against U.S. troops.
The 52-page classified memo, prepared for Defense Secretary Donald H. Rumsfeld, offered a sweeping assertion of executive power, declaring that Congress and the federal courts have no authority to limit the detention and interrogation of combatants captured in war if the president approves the actions.
"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 report claimed.
Even though the administration was claiming the right to ignore laws and treaties against torture, officials say it has abided by them.
Specialists in military law expressed consternation at the report, one of a number of memos leaked in recent days that suggest that the Bush administration was exploring ways to circumvent international treaties and U.S. laws that prohibit torture and mistreatment of prisoners.
"They were trying to reverse a 50-year history of adherence to the Geneva Conventions and torture conventions, and it's very troubling," said Scott Silliman, a former Air Force officer who heads the Center on Law, Ethics and National Security at Duke University.
Eugene Fidell, who directs the nonpartisan National Institute of Military Justice, said the assertion of broad executive powers to defend the use of torture was of special concern.
"That's what has really raised eyebrows, that presidential power trumps everything—courts, laws, treaties, Congress," Fidell said.
Officials in the Bush administration have said no torture ever was authorized for use against prisoners captured during the war on terrorism.
Human rights groups and other administration critics, however, have cited the memos as evidence that the administration didn't respect traditional limits on prisoner treatment. They say that disrespect created an atmosphere that gave rise to the abuse of prisoners at the Abu Ghraib detention center in Iraq and may have had a role in questionable deaths of prisoners in Afghanistan and Iraq during interrogation.
"This pattern of abuse did not result from the acts of individual soldiers who broke the rules. It resulted from decisions made by the Bush administration to bend, ignore, or cast rules aside," the private group Human Rights Watch said Wednesday in a report titled "The Road to Abu Ghraib."
Its report charged that Bush administration policies created a climate for abuse in three ways: by circumventing long-established rules of war to fight the war on terrorism; by employing coercive methods to "soften up" detainees; and by taking "at best a `see no evil, hear no evil' approach to all reports of detainee mistreatment."
On Tuesday, Attorney General John Ashcroft refused to turn over to the Senate Judiciary Committee copies of an August 2002 Justice Department memorandum that senators and news stories said also provided defenses against torture.
Ashcroft said the memos were internal legal advice that never led to any directive authorizing torture, and said the administration never authorized any interrogation techniques that could be described as torture, whether in Iraq, Afghanistan or Guantanamo.
Margaret Stock, a West Point professor of national security law and a lieutenant colonel in an Army Reserve police unit, noted that the new interpretations of torture prohibitions have caused controversy. "There's been extensive debate and disagreement between civilian and military on these issues for a couple of years now," she said.
The Pentagon memo was written before U.S. troops entered Iraq by a working group of lawyers in several departments, headed by Air Force General Counsel Mary Walker. Much of it explored how to narrowly limit the legal definitions of torture and advised on ways that U.S. personnel could avoid war-crimes prosecution.
The memo was prompted by a request to Rumsfeld from Gen. James Hill, the commander of the U.S. Southern Command, for a legal review of permissible interrogation techniques at Guantanamo, where more than 600 suspected terrorists, most of whom were captured in Afghanistan, were detained, according to a former administration official who participated in drafting the memo.
Hill was seeking answers to questions at the Guantanamo Bay detention facility about whether more coercive interrogation techniques could be used, said the former official, Mark Jacobson.
A Pentagon spokesman said Rumsfeld approved 24 "humane" interrogation techniques for use at Guantanamo in April 2003, and four of them required his personal review for use. The Pentagon didn't disclose the techniques, and they aren't detailed in the portion of the March 2003 report disclosed this week.
Jacobson, who worked on detention policy in the Pentagon until last year, said those techniques were "nothing like what happened at Abu Ghraib prison" in Iraq. According to other reports, they involved "stress and duress" techniques such as sleep and food deprivation.
For the last two years, the administration has told Congress it's strictly adhering to the Geneva Conventions and applicable treaties.
Several members of Congress said this week that recent disclosures had undercut that assurance.
"Congress has been repeatedly assured that all interrogations were being conducted in accordance with the Convention on Torture," said Rep. Jane Harman, D-Calif., the ranking member of the House Intelligence Committee.
"However, the (report) states that the U.S. law implementing the convention does not apply to the conduct of U.S. personnel at Guantanamo," Harman said. She has visited Guantanamo three times, and "this extraordinary argument was never advanced."
In April, just before the Abu Ghraib photos emerged, an administration lawyer, Paul Clement, told the Supreme Court the executive branch would never authorize even "mild torture" to elicit information from a prisoner, and would follow all treaties and laws.
Several legal experts think Clement may have unintentionally misled the justices, and that could be a factor later this month, when the court will decide whether U.S. courts have jurisdiction over the prison camp at Guantanamo.
(c) 2004, Knight Ridder/Tribune Information Services.