WASHINGTON—What began as a military investigation of seven low-ranking Army reservists accused of tormenting Iraqi prisoners now appears likely to become a wide-ranging examination of whether top civilian and military leaders authorized torture or approved efforts to intimidate, humiliate or degrade suspected terrorists in violation of U.S. laws.
The Army is considering placing its investigation under a four-star general, a move that would permit a top to bottom examination of the actions of the military chain of command, including those of the commander of all U.S. forces in Iraq. The current head of the investigation is a two-star general.
In Congress, Democrats and some Republicans are calling for greater scrutiny of what interrogation guidelines the Bush administration approved for dealing with prisoners in Afghanistan and at the U.S. prison camp at Guantanamo Bay, Cuba. Such scrutiny is likely over the actions of top aides to Secretary of Defense Donald Rumsfeld and Attorney General John Ashcroft.
Following April's release of photographs of abuse by U.S. soldiers in Baghdad's notorious Abu Ghraib prison, military leaders and Bush administration officials denounced the acts as the isolated work of undisciplined reservists.
Since that time, however, the Army has announced that it is investigating the deaths of 127 prisoners in Iraq and Afghanistan, and evidence compiled by military and congressional investigators indicates that top civilian and military leaders dispensed contradictory advice on how far to push the bounds of laws against torture and whether certain detainees were covered by international treaties.
"It's not clear what the instructions have been in regard to what can be done and what cannot be done," said Sen. Mike DeWine, R-Ohio, a member of the Senate Judiciary Committee.
As a result, Congress is likely to go beyond seeking accountability for the abuses at Abu Ghraib and engage in a far more substantial debate over how detainees should be treated in the new U.S. war on terrorism.
If anything, the memos from Bush administration and Pentagon lawyers indicate that existing international treaties and federal statutes are subject to a variety of interpretations. Pentagon and intelligence lawyers in a March 2003 memo pointed out loopholes in the legal constraints on torture.
They noted that a 1994 international Convention Against Torture prohibits torture even in "a state of war or public emergency." But they also argued that, absent an explicit prohibition by Congress, torture could be justified if it is necessary to save lives.
That memo and a preceding Justice Department memo were meant to address questions relating to the interrogation of al-Qaida prisoners held in Afghanistan and Guantanamo Bay Naval Station.
The Bush administration had always said the al-Qaida prisoners were not subject to the Geneva Conventions. But many members of Congress are pushing to explore how that decision might have colored what took place at Abu Ghraib and elsewhere, where the conventions did apply. The former commander at Guantanamo, Maj. Gen. Geoffrey Miller, advised commanders in Iraq to "Gitmo-ize" Abu Ghraib's practices by using military police to prepare detainees for interrogation by intelligence officers, according to testimony.
Lt. Gen. Ricardo Sanchez, commander of the multinational force in Iraq, testified last month that he was not aware of the abuses before January. But Brig. Gen. Janis Karpinski, who was in charge of the military police unit at Abu Ghraib and other prisons, has said she informed Sanchez in the fall.
Sanchez also says he was unaware of multiple reports from the International Committee for the Red Cross about maltreatment of prisoners. The reports were submitted to Central Command during the fall of 2003.
Sanchez apparently has not been questioned by military investigators probing what took place at Abu Ghraib because military protocol does not permit a subordinate to question a superior officer. The two officers who have conducted investigations to date, Antonio M. Taguba and George Fay, are major generals, one rank below Sanchez.
In a press conference Thursday, President Bush said his instructions were that "anything we did would conform to U.S. law and would be consistent with international treaty obligations."
But the administration memos that have become public argued that U.S. laws do not flatly prohibit torture. The Pentagon's 2003 memo notes that Congress specifically left open the possibility that an act of torture could be defensible if deemed necessary.
That position will be challenged next week by Sen. Richard Durbin, D-Ill., a member of the Senate Judiciary Committee, who plans to introduce an amendment to a defense authorization bill that would prohibit "torture or cruel, inhuman or degrading treatment or punishment" of detainees held in military facilities.
Ashcroft last week, testifying before the Senate Judiciary Committee, refused to turn over the 2002 memo prepared by his department lawyers, saying it would set a bad precedent by making public confidential advice from the Justice Department to the president. In his press conference Thursday, Bush said he could not recall whether he had seen the document.
Democrats decried Ashcroft's refusal. Most Republicans blamed partisanship, but at least one Republican joined the Democrats in protesting.
These papers "address difficult and important questions that should not be decided by nameless lawyers in working groups in the bowels of the Pentagon and the Justice Department and then kept private," said Rep. Heather Wilson, R-N.M., a member of the House Armed Services Committee.
"I don't understand why they are hiding these documents," she said.
Wilson, who served in the U.S. Air Force, said has been urging the House Armed Services Committee to beef up its oversight of the Defense Department but has been hamstrung by its chairman, Rep. Duncan Hunter, and the House Republican leadership. Hunter and House Majority Leader Tom Delay, R-Texas, have said the publicity over the prison abuses may endanger U.S. soldiers and distract from the war effort.
Wilson disagrees. "These are important public policy issues that are far more important than short term political gains." She said would support subpoena requests for the documents and wants access to more than what she had read in the media.
Scott Silliman, director of the Center for Law, Ethics and National Security at Duke University Law School, said the Department of Justice argument that a wartime president cannot be bound by international law is "an extraordinary and breathtaking theory."
Silliman, a former Air Force lawyer, said such an analysis would create "a culture where avoidance of international and domestic law was accepted."
"When you do that you should reasonably conclude that there are going to be results from that like what we saw" at Abu Ghraib, he said.
Whether Congress should have a role is a subject of legal dispute. The 2003 Pentagon memo states "Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
But in a lengthy report for Congress, the authoritative Congressional Research Service concluded in April 2002 that the Constitution provides Congress with "ample authority to legislate the treatment of battlefield detainees in the custody of the U.S. military."
Proponents of congressional action acknowledge they will have a fight. Republican leaders in both the House and Senate have said they want little to do with legislation to toughen guidelines on torture.
Sen. Orrin Hatch, R-Utah, the chairman of the Judiciary Committee where such legislation would likely originate, said he was suspicious of any efforts by Democrats to obtain Justice Department documents or initiate legislation.
"I don't want my committee used for partisan purposes," he said Thursday.
(Knight Ridder correspondent Shannon McCaffrey contributed to this report.)
(c) 2004, Knight Ridder/Tribune Information Services.