Describing the contents of the Feb. 7, 2002, memo, Gonzales said, “This is the only formal, written directive from the President regarding treatment of detainees. The President determined that Geneva does not apply with respect to our conflict with al-Qaeda. Geneva applies with respect to our conflict with the Taliban. Neither the Taliban or al Qaeda are entitled to POW protections.”
Gonzales added: “But the President also determined – and this is quoting from the actual document, paragraph 3; this is very important – he said, ‘Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been, and will continue to be, a strong supporter of Geneva and its principles. As a matter of policy, the Armed Forces are to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva’.”
But the FBI e-mail’s reference to an Executive Order describing specific harsh interrogation techniques, allegedly approved by President Bush, appeared to contradict Gonzales’s assertions.
Yoo’s Memo
The issue surrounding U.S. interrogation methods and whether they amount to torture resurfaced two weeks ago when the Defense Department released an 81-page document in response to the ACLU’s ongoing FOIA lawsuit.
John Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, drafted the document, dated March 14, 2003. It essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners.
"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network," Yoo wrote.
"In that case, we believe that he could argue that the Executive Branch's constitutional authority to protect the nation from attack justified his actions."
The legal opinion for military interrogators was virtually identical to an earlier memo that Yoo had written in August 2002 for CIA interrogators. Widely called the “Torture Memo,” it provided CIA interrogators with the legal authority to use long-outlawed tactics, such as waterboarding, when interrogating so-called high-level terrorist suspects.
In declaring that the United States does not engage in torture, Bush administration officials appear to be relying on a narrower U.S. definition of torture than that is accepted under international law, such as the 1984 Convention Against Torture that was signed by the Reagan administration in 1988 and ratified by the U.S. Senate in 1994.
“The threshold for torture is lower under international law: acts that do not amount to torture under U.S. law may do so under international law,” wrote Philippe Sands, law professor at University College London, in a column published in the Dec. 9, 2005, edition of The Financial Times.
“Waterboarding – strapping a detainee to a board and dunking him under water so he believes that he might drown – plainly constitutes torture under international law, even if it may not do so under U.S. law. …
“When the U.S. joined the 1984 convention it entered an ‘understanding’ on the definition of torture, to the effect that the international definition was to be read as being consistent with the U.S. definition. The administration relies on the ‘understanding.’
“So, when Ms. Rice says the U.S. does not do torture or render people to countries that practice torture, she does not rely on the international definition. That is wrong: the convention does not allow each country to adopt its own definition, otherwise the convention's obligations would become meaningless. That is why other governments believe the U.S. ‘understanding’ cannot affect U.S. obligations under the convention.”
At the June 22, 2004, news conference, Gonzales said the White House defined torture as a “a specific intent to inflict severe physical or mental harm or suffering. That's the definition that Congress has given us and that's the definition that we use.”
However, on March 8, 2008, President Bush vetoed congressional legislation that called for a specific ban on waterboarding and other abusive interrogation techniques, including stripping prisoners naked, subjecting them to extreme cold and staging mock executions.
"This is no time for Congress to abandon practices that have a proven track record of keeping America safe," the president said in a radio address explaining his veto.
"We created alternative procedures to question the most dangerous al-Qaeda operatives, particularly those who might have knowledge of attacks planned on our homeland." Bush said. "If we were to shut down this program and restrict the CIA to methods in the [Army] field manual, we could lose vital information from senior al-Qaeda terrorists, and that could cost American lives."
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
