New Evidence Prison Torture Was Approved at Top
classified Pentagon report, providing a series of legal arguments
apparently intended to justify abuses and torture against detainees,
appears to undermine public assurances by senior U.S. officials,
including President George W. Bush, that the military would never
resort to such practices in the "war on terrorism."
excerpts of the report, which was drafted by Defense Department
lawyers, were published in the Wall Street Journal Monday.
The text asserts, among other things, that the president, in his
position as commander-in-chief, has virtually unlimited power to
wage war, even in violation of U.S. law and international treaties.
breadth of authority in the report is wholly unprecedented,"
says Avi Cover, a senior attorney with the U.S. Law and Security
program of Human Rights First, formerly known as Lawyers Committee
for Human Rights.
now, we've used the rhetoric of a president who is 'above the law,’
but this document makes that [assertion] explicit; it's not a metaphor
anymore," he added.
it is unknown whether Bush himself ever saw or approved the report,
it was classified "secret" by Pentagon chief Donald Rumsfeld
on Mar. 6, 2003, the eve of the U.S. invasion of Iraq, according
to the Journal.
full copy of the report is expected to be published on the Internet
Monday night, according to sources who declined to say on which
website it would appear.
report's partial publication comes amid growing charges that the
Pentagon is engaged in a cover-up of the full extent of abuses committed
by U.S. forces in their anti-terrorism campaign in Afghanistan,
Iraq, at the U.S. naval facility at Guantánamo, Cuba, and
abuse scandal first came to light in April when news organizations
published photographs of the sexual humiliation and abuse of Iraqi
detainees at Abu Ghraib prison outside Baghdad that took place last
October and November. Seven soldiers have been charged in those
the Pentagon and the White House have claimed that the abuses were
committed by a "few bad apples," evidence of much more
widespread abuse, including severe beatings and torture, has steadily
accumulated over the past month.
detainees at Guantánamo Bay and Afghanistan, as well as other
prisons in Iraq, have complained about similar tactics used against
them, leading a number of lawmakers and other observers to conclude
that such treatment was authorized or at the least condoned by authorities
at much higher levels.
Defense Department has itself launched six investigations or reviews
into the treatment of prisoners in Iraq and Afghanistan, but none
is designed to probe the role of senior officers or the civilian
leadership in the Pentagon or relevant policies that they may have
the same time, lawmakers from the governing Republican Party have
been actively discouraged from undertaking investigations of their
has really launched a massive cover-up operation within the Department
of Defense," according to Scott Horton, president of the International
League for Human Rights and an expert on military law with the New
York City Bar Association. "The investigations going on right
now have all the hallmarks of a cover-up."
was approached in April 2003 by senior uniformed military attorneys
(Judge Advocates General, or JAGs), who were troubled by detention
and interrogation policies they said were being developed by political
appointees at the Pentagon.
quite a reasonable inference to say that this report [the subject
of the Journal articles] is what rattled them," Horton
said. "We knew they were extremely upset about something very
much like this."
report, according to the Journal account, was initiated as
a result of the failure of interrogators at the Guantánamo
base, where suspected al-Qaeda and Taliban members are being held,
to obtain information using conventional techniques. It was drafted
by a working group appointed by the Pentagon's general counsel,
William Haynes, who last June assured Congress that the military
could fully abide by the 1984 United Nations Convention Against
of the text, which reportedly runs more than 100 pages, deals with
legal issues relating to interrogation tactics. But, according to
the Journal, at its core the report asserts that nothing is more
important, including the normal restrictions on torture, than "obtaining
intelligence vital to the protection of untold thousands of American
report further cited possible Defenses for the use of torture, including
the "necessity" for such methods to prevent an attack,
or "superior orders," also known as the Nuremberg Defense
that supposedly absolves the responsibility of subordinates for
following orders from others higher up the chain of command.
Defenses are inconsistent, however, with U.S. law and the UN's CAT,
which was ratified by the United States in 1994. It 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 for torture,"
and that orders from superiors "may not be invoked as a justification
army field manuals also say that soldiers are prohibited from obeying
any superior order to torture someone.
its report, the working group took the position that neither the
U.S. Congress, the courts, nor international law could interfere
with the president's powers to wage war. That means, according to
the report, that the president himself is not bound by U.S. law,
such as the federal Torture Statute or the constitutional ban on
"cruel and unusual" punishment.
order to respect the president's inherent constitutional authority
to manage a military campaign ... [the prohibition against torture]
must be construed as inapplicable to interrogations undertaken pursuant
to his commander-in-chief authority," the document stated,
adding later that "without a clear statement otherwise, criminal
statutes [against torture or abuse] are not read as infringing on
the president's ultimate authority" to wage war.
most terrifying about this is the argument that the administration
has been making since 9/11 – that the president has unlimited power
to do whatever he deems necessary," said Cover. "It doesn't
matter what Congress says, what the constitution says, or what international
the report also bolsters the growing belief that easing the rules
governing interrogations was a top-level policy decision that better
explains why reports of abuses are so widespread.
anyone still thinks that the only people who dreamt up the idea
about 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.
not hard to see how these abstract arguments made in Washington
led to appalling and systematic abuses that ended up doing huge
damage to U.S. interests," he said.
what you've got here is a group of government attorneys trying to
justify war crimes," Horton told IPS. "It makes a mockery
of Haynes's statement about adhering to the CAT and Bush's assurances
that the U.S. would not torture or subject detainees to cruel or
we apply the same rules to ourselves as we have advocated in the
international tribunals on Yugoslavia and Rumsfeld [that the civilian
leadership is responsible for war crimes committed by their militaries],
then Donald Rumsfeld is in very serious trouble."
Lobe is Inter Press Service's correspondent in Washington, DC.
© 2004 Inter Press Service