Jurists Condemn Bush Administration's Torture Memos
130 influential U.S. jurists, including twelve former federal judges
and a former director of the Federal Bureau of Investigation (FBI),
have signed a statement denouncing Bush administration memoranda
regarding the treatment of Iraqi and other detainees and accusing
their authors of unprofessional conduct.
statement, in the form of an open letter sent Wednesday to President
George W. Bush, other top administration officials and members of
Congress, declares that the memoranda, which were drafted by political
appointees in the Pentagon, the Justice Department and the White
House, "seek to circumvent long established and universally
acknowledged principles of law and common decency."
signers, who also include eight past presidents of the American
Bar Association (ABA) and the heads of several U.S.-based international
human rights groups, also call on the administration to release
all other memoranda that relate to the detainee treatment and for
Congress to compel their production if they are not released
memoranda "ignore and misinterpret the U.S. Constitution and
laws, international treaties and rules of international law,"
according to the statement. "The lawyers who approved and signed
these memoranda have not met their high obligation to defend the
statement was released on the eve of the annual ABA meeting in Atlanta
this weekend. The 400,000-member organization is expected to debate
several resolutions condemning the abuses at Abu Ghraib prison in
Iraq and call for an independent, bipartisan commission something
which the administration has so far rejected to investigate
how they took place and whether the memoranda contributed to a larger
pattern of abuses in the war on terrorism.
use of torture and cruel, inhuman or degrading treatment by United
States personnel in the interrogation of prisoners captured in the
Afghanistan and Iraq conflicts has brought shame on the nation and
undermined our standing in the world," according to a 20-page
brief that is being submitted to the ABA's House of Delegates in
support of the resolutions.
American public still has not been adequately informed of the extent
to which prisoners have been abused, tortured, or rendered to foreign
governments which are known to abuse and torture prisoners,"
the brief states.
is incumbent upon this organization, which makes the rule of law
its touchstone, to urge the U.S. government to stop the torture
and abuse of detainees, investigate violations of law and prosecute
those who committed, authorized or condoned those violations, and
assure that detention and interrogation practices adhere faithfully
to the Constitution, laws and treaties of the United States and
related customary international law."
administration, which has blamed reported abuses, including those
depicted in the infamous photographs of sexual abuse and humiliation
at Abu Ghraib prison, on low-ranking soldiers has insisted that
the memoranda in question were never transmitted to military commanders
in the field, nor did they reflect the government's actual policy.
The administration has consistently maintained that it does not
condone torture under any circumstances.
human rights groups and other watchdogs have contended that many
of the abuses reported in Afghanistan, Iraq, and at the Guantanamo
Bay detention facility have been so consistent that they appear
to have been systemic.
not hard to see how these abstract arguments made in Washington,"
said Tom Malinowski, director of the Washington office of Human
Rights Watch, in reference to the administration's memoranda, "led
to appalling and systematic abuses that ended up doing huge damage
to U.S. interests."
Pentagon memorandum, for example, asserted that the president in
his role as "commander-in-chief" might choose to ignore
laws, treaties, or even the Constitution regarding the treatment
of prisoners in wartime.
Justice Department memo asserts that the president has the authority
to approve the infliction of extreme physical distress by redefining
"torture" as "equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death." Similarly, mental pain
and suffering does not amount to torture in the memo-writers' view,
unless "it results in significant psychological harm of significant
duration, e.g., lasting for months or even years."
memos by Justice and Defense Department political appointees presented
a series of arguments that they said could be used as defenses against
U.S. torture statutes and the UN's Convention Against Torture (CAT)
that has been ratified by the United States.
to published reports, most career attorneys in the Justice, Defense
and State Departments strongly opposed the positions taken in the
memos but were overruled by senior political appointees. Military
attorneys and the State Department were especially outspoken in
arguing for applying the full range of protections to detainees,
including members of the Taliban, under the Geneva Conventions,
according to other memoranda that have leaked to the press.
most senior lawyers in the Department of Justice, the White House,
Department of Defense and the vice president' sought to justify
actions that violate the most basic rights of all human beings,"
according to the jurists' statement.
those who have been named in published accounts as responsible for
the memos include former Asst. Attorney General Jay Bybee who is
now a federal judge; the Pentagon's general counsel, William Haynes
II, who has been nominated for a federal judgeship; Undersecretary
of Defense for Policy, Douglas Feith; the former head of the Justice
Department's Office of Legal Counsel (OLC), Jack Goldsmith; and
John Yoo, one of his deputies in the OLC.
of the attorneys involved have been associated with The Federalist
Society, an association of mainly far-right attorneys who gained
top positions in the Bush administration, particularly in the Justice
lawyers who prepared and approved these memoranda have failed to
meet their professional obligations," according to the statement,
which was signed by, among others, former FBI director William Sessions,
retired Chief Judge of the U.S. Third Circuit Court of Appeals John
J. Gibbons, former U.S. Attorney General Nicholas Katzenbach, and
former Circuit Judge of the U.S. Court of Appeals for the District
of Columbia, Abner Mikva, among others.
have counseled individuals to ignore the law and offered arguments
to minimize their exposure to sanction or liability for doing so,"
the statement added, noting that in several cases, the memoranda
ignored well-established precedents, including Supreme Court decisions,
that directly contradicted their positions.
experts have been particularly harsh in their criticism of the attorneys
in the OLC, which is supposed to provide the Attorney General with
opinions that are firmly grounded in accepted law. Goldsmith resigned
in June to take a position at Harvard Law School, while Yoo, who
has aggressively defended the memos in public and in the editorial
pages of the Wall Street Journal, left the administration
last year for the University of California's Boalt Hall School of
Law in Berkeley and the American Enterprise Institute, a neo-conservative
think tank in Washington.
the human rights groups whose directors signed the statement were
Human Rights First (formerly Lawyers Committee for Human Rights),
Human Rights Watch, the International League for Human Rights, Physicians
for Human Rights, and the Alliance for Justice.
Lobe is Inter Press Service's correspondent in Washington, DC.
© 2004 Inter Press Service