The Bush Memo Scandal

www.DanHankins.com

THE BUSH ADMINISTRATION TORTURE MEMO SCANDAL

THE MEMOS (all in PDF format):

Memo of Patrick F. Philbin and John C. Yoo, Office of Legal Counsel, Department of Justice, to William J. Haynes, II, General Counsel, Department of Defense, "Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba," 28 December 2001.

Memo of John C. Yoo and Robert J. Delahunty, Office of Legal Counsel, Department of Justice, to William J. Haynes, II, General Counsel, Department of Defense, "Application of Treaties and Laws to al Qaeda and Taliban Detainees," 9 January 2002. (Also here: Yoo's Memo on Avoiding the Geneva Convention Restrictions)

These two memorandums from the Justice Department, both written by John C. Yoo, a University of California law professor who was serving in the department, provided arguments to keep United States officials from being charged with war crimes for the way prisoners were detained and interrogated. The memorandums, principally the one written on January 9, provided legal arguments to support Bush administration officials' assertions that the Geneva Conventions did not apply to detainees from the war in Afghanistan.

Memo of Alberto R. Gonzales, Counsel to the President, to President George W. Bush, "Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with al Qaeda and the Taliban," 25 January 2002. (Also here: Gonzales's Memo to Bush)

White House Counsel Alberto R. Gonzales, in a memorandum to President Bush, said that the Justice Department's advice in the January 9 memorandum was sound and that Mr. Bush should declare the Taliban and Al Qaeda outside the coverage of the Geneva Conventions. That would keep American officials from being exposed to the federal War Crimes Act, a 1996 law that carries the death penalty.

Memo of William H. Taft, IV, The Legal Adviser, Department of State, to Alberto R. Gonzales, Counsel to the President, "Comments on Your Paper on the Geneva Convention," 2 February 2002. (Also here: Taft's Memo on the Dangers of Rejecting the Geneva Conventions)

A memorandum from William H. Taft, IV, the State Department's legal adviser, to Mr. Gonzales warned that the broad rejection of the Geneva Conventions posed several problems. "A decision that the conventions do not apply to the conflict in Afghanistan in which our armed forces are engaged deprives our troops there of any claim to the protection of the conventions in the event they are captured." An attachment to this memorandum, written by a State Department lawyer, showed that most of the administration's senior lawyers agreed that the Geneva Conventions were inapplicable. The attachment noted that C.I.A. lawyers asked for an explicit understanding that the administration's public pledge to abide by the spirit of the conventions did not apply to its operatives.

Report of the International Committee of the Red Cross, "On the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation," February, 2002.

This report by the Red Cross warns that the Geneva Convention, to which the United States is a signatory, requires that all prisoners in Iraq be considered prisoners of war and treated accordingly.

Memo of Jay S. Bybee, Office of Legal Counsel, Department of Justice, to Alberto R. Gonzales, Counsel to the President, "Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A," 1 August 2002. (Also here: Bybee's Justice Department Memo on Torture, Letter by Bybee on Torture to White House Counsel)

This memorandum provided a justification for using torture to extract information from al Qaeda operatives. It provides very narrow definitions of torture that were devised to allow interrogators to evade being charged with that offense. The legal defintions in this memo allowed President Bush to claim that the United States "does not conduct torture," and "follows the law because we are a nation of laws."

"Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations," Department of Defense, 6 March 2003.

This report, prepared by a Defense Department legal task force, drew on the January 2002 and August 2002 memos to declare that President Bush was not bound by either an international treaty prohibiting torture or by a federal anti-torture law, because he had the authority as commander in chief to approve any technique needed to protect the nation's security. This report also said that executive branch officials, including those in the military, could be immune from domestic and international prohibitions against torture for a variety of reasons, including a belief by interrogators that they were acting on orders from superiors "except where the conduct goes so far as to be patently unlawful."

Memo from Secretary of Defense Donald H. Rumsfeld to Gen. James T. Hill, "Counter-Resistance Techniques in the War on Terrorism," 2 April 2003. (Also here: Rumsfeld's Memo on Interrogation Techniques)

A memorandum from Secretary of Defense Donald H. Rumsfeld to Gen. James T. Hill outlines 24 permitted interrogation techniques, 4 of which were considered stressful enough to require Mr. Rumsfeld's explicit approval. Defense Department officials say it did not refer to the legal analysis of the month before.

NEWS REPORTS:

Double Standards?

A Justice Department memo proposes that the United States hold others accountable for international laws on detainees--but that Washington did not have to follow them itself

(Photo) An interrogation room at Guantanamo Bay. The Bush administration has said that detainees questioned there are not protected by the Geneva Conventions.

By Michael Isikoff
Investigative Correspondent
Newsweek
May 21, 2004 (Updated: May 25, 2004)
http://www.msnbc.msn.com/id/5032094/site/newsweek/

In a crucial memo written four months after the September 11, 2001, terror attacks, Justice Department lawyers advised that President George W. Bush and the U.S. military did not have to comply with any international laws in the handling of detainees in the war on terrorism. It was that conclusion, say some critics, that laid the groundwork for aggressive interrogation techniques that led to the abuses at the Abu Ghraib prison in Iraq.

The draft memo, which drew sharp protest from the State Department, argued that the Geneva Conventions on the treatment of prisoners of war did not apply to any Taliban or Al Qaeda fighters being flown to the detention center at Guantanamo Bay, Cuba, because Afghanistan was a "failed state" whose militia did not have any status under international treaties.

But the Jan. 9, 2002 memo, written by Justice lawyers John Yoo and Robert J. Delahunty, went far beyond that conclusion, explicitly arguing that no international laws&emdash;including the normally observed laws of war&emdash;applied to the United States at all because they did not have any status under federal law.

"As a result, any customary international law of armed conflict in no way binds, as a legal matter, the President or the U.S. Armed Forces concerning the detention or trial of members of Al Qaeda and the Taliban," according to a copy of the memo obtained by NEWSWEEK. A copy of the memo is being posted today on NEWSWEEK's Web site.

At the same time, and even more striking, according to critics, the memo explicitly proposed a de facto double standard in the war on terror in which the United States would hold others accountable for international laws it said it was not itself obligated to follow.

After concluding that the laws of war did not apply to the conduct of the U.S. military, the memo argued that President Bush could still put Al Qaeda and Taliban fighters on trial as war criminals for violating those same laws. While acknowledging that this may seem "at first glance, counter-intuitive," the memo states this is a product of the president's constitutional authority "to prosecute the war effectively."

The two lawyers who drafted the memo, entitled "Application of Treaties and Laws to Al Qaeda and Taliban Detainees," were key members of the Justice Department's Office of Legal Counsel, a unit that provides legal advice to the White House and other executive-branch agencies. The lead author, John Yoo, a conservative law professor and expert on international law who was at the time deputy assistant attorney general in the office, also crafted a series of related memos&emdash;including one putting a highly restrictive interpretation on an international torture convention&emdash;that became the legal framework for many of the Bush administration's post-9/11 policies. Yoo also coauthored another OLC memo entitled "Possible Habeas Jurisdiction Over Aliens Held in Guantanamo Bay, Cuba," that concluded that U.S. courts could not review the treatment of prisoners at the base.

Critics say the memos' disregard for the United States' treaty obligations and international law paved the way for the Pentagon to use increasingly aggressive interrogation techniques at Guantanamo Bay&emdash;including sleep deprivation, use of forced stress positions and environmental manipulation&emdash;that eventually were applied to detainees at the Abu Ghraib prison in Iraq. The customary laws of war, as articulated in multiple international treaties and conventions dating back centuries, also prohibit a wide range of conduct such as attacks on civilians or the murder of captured prisoners.

Kenneth Roth, the executive director of Human Rights Watch, who has examined the memo, described it as a "maliciously ideological or deceptive" document that simply ignored U.S. obligations under multiple international agreements. "You can't pick or choose what laws you're going to follow," said Roth. "These political lawyers set the nation on a course that permitted the abusive interrogation techniques" that have been recently disclosed.

When you read the memo, "the first thing that comes to mind is that this is not a lofty statement of policy on behalf of the United States," said Scott Horton, president of the International League for Human Rights, in an interview scheduled to be aired tonight on PBS's "Now with Bill Moyers" show. "You get the impression very quickly that it is some very clever criminal defense lawyers trying to figure out how to weave and bob around the law and avoid its applications."

At the time it was written, the memo also prompted a strong rebuttal from the State Department's Legal Advisor's office headed by William Howard Taft IV. In its own Jan. 11, 2002, response to the Justice draft, Taft's office warned that any presidential actions that violated international law would "constitute a breach of an international legal obligation of the United States" and "subject the United States to adverse international consequences in political and legal fora and potentially in the domestic courts of foreign countries."

"The United States has long accepted that customary international law imposes binding obligations as a matter of international law," reads the State Department memo, which was also obtained by NEWSWEEK. "In domestic as well as international fora, we often invoke customary international law in articulating the rights and obligations of States, including the United States. We frequently appeal to customary international law." The memo then cites numerous examples, ranging from the U.S. Army Field Manual on the Law of Land Warfare ("The unwritten or customary law of war is binding upon all nations," it reads) to U.S. positions in international issues such as the Law of the Sea.

But the memo also singled out the potential problems the Justice Department position would have for the military tribunals that President Bush had recently authorized to try Al Qaeda members and suspected terrorists. Noting that White House counsel Alberto Gonzales had publicly declared that the persons tried in such commissions would be charged with "offenses against the international laws of war," the State Department argued that the Justice position would undercut the basis for the trials.

"We are concerned that arguments by the United States to the effect that customary international law is not binding will be used by defendants before military commissions (or in proceedings in federal court) to argue that the commissions cannot properly try them for crimes under international law," the State memo reads. "Although we can imagine distinctions that might be offered, our attempts to gain convictions before military commissions may be undermined by arguments which call into question the very corpus of law under which offenses are prosecuted."

The Yoo-Delahunty memo was addressed to William J. Haynes, then general counsel to the Defense Department. But administration officials say it was the primary basis for a Jan. 25, 2002, memo by White House counsel Gonzales&emdash;which has also been posted on NEWSWEEK's Web site&emdash;that urged the president to stick to his decision not to apply prisoner-of-war status under the Geneva Conventions to captured Al Qaeda or Taliban fighters. The president's decision not to apply such status to the detainees was announced the following month, but the White House never publicly referred to the Justice conclusion that no international laws&emdash;including the usual laws of war&emdash;applied to the conflict.

One international legal scholar, Peter Spiro of Hofstra University, said that the conclusions in the memo related to international law "may be defensible" because most international laws are not binding in U.S. courts. But Spiro said that "technical" and "legalistic" argument does not change the effect that the United States still has obligations in international courts and under international treaties. "The United States is still bound by customary international law," he said.

One former official involved in formulating Bush administration policy on the detainees acknowledged that there was a double standard built into the Justice Department position, which the official said was embraced, if not publicly endorsed, by the White House counsel's office. The essence of the argument was, the official said, "it applies to them, but it doesn't apply to us."

But the official said this was an eminently defensible position because there were many categories of international law, some of which clearly could not be interpreted to be binding on the president. In any case, the general administration position of not applying any international standards to the treatment of detainees was driven by the paramount needs of preventing another terrorist attack. "The Department of Justice, the Department of Defense and the CIA were all in alignment that we had to have the flexibility to handle the detainees&emdash;and yes, interrogate them&emdash;in ways that would be effective," the official said.

Memo offered justification for use of torture

Justice Department gave advice in 2002

By Dana Priest and R. Jeffrey Smith
The Washington Post
June 07, 2004
http://www.msnbc.msn.com/id/5159903/

In August 2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad "may be justified," and that international laws against torture "may be unconstitutional if applied to interrogations" conducted in President Bush's war on terrorism, according to a newly obtained memo.

If a government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network," said the memo, from the Justice Department's office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later.

The memo seems to counter the pre-Sept. 11, 2001, assumption that U.S. government personnel would never be permitted to torture captives. It was offered after the CIA began detaining and interrogating suspected al Qaeda leaders in Afghanistan and elsewhere in the wake of the attacks, according to government officials familiar with the document.

The legal reasoning in the 2002 memo, which covered treatment of al Qaeda detainees in CIA custody, was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Department's detention center at Guantanamo Bay, Cuba. At that time, Defense Secretary Donald H. Rumsfeld had asked the lawyers to examine the logistical, policy and legal issues associated with interrogation techniques.

Bush administration officials say flatly that, despite the discussion of legal issues in the two memos, it has abided by international conventions barring torture, and that detainees at Guantanamo and elsewhere have been treated humanely, except in the cases of abuse at Abu Ghraib prison in Iraq for which seven military police soldiers have been charged.

Still, the 2002 and 2003 memos reflect the Bush administration's desire to explore the limits on how far it could legally go in aggressively interrogating foreigners suspected of terrorism or of having information that could thwart future attacks.

In the 2002 memo, written for the CIA and addressed to White House Counsel Alberto R. Gonzales, the Justice Department defined torture in a much narrower way, for example, than does the U.S. Army, which has historically carried out most wartime interrogations.

Avoiding legal accountability

In the Justice Department's view -- contained in a 50-page document signed by Assistant Attorney General Jay S. Bybee and obtained by The Washington Post -- inflicting moderate or fleeting pain does not necessarily constitute torture. Torture, the memo says, "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

By contrast, the Army's Field Manual 34-52, titled "Intelligence Interrogations," sets more restrictive rules. For example, the Army prohibits pain induced by chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time; and food deprivation. Under mental torture, the Army prohibits mock executions, sleep deprivation and chemically induced psychosis.

Human rights groups expressed dismay at the Justice Department's legal reasoning yesterday.

"It is by leaps and bounds the worst thing I've seen since this whole Abu Ghraib scandal broke," said Tom Malinowski of Human Rights Watch. "It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations."

But a spokesman for the White House counsel's office said, "The president directed the military to treat al Qaeda and Taliban humanely and consistent with the Geneva Conventions."

Mark Corallo, the Justice Department's chief spokesman, said "the department does not comment on specific legal advice it has provided confidentially within the executive branch." But he added: "It is the policy of the United States to comply with all U.S. laws in the treatment of detainees -- including the Constitution, federal statutes and treaties." The CIA declined to comment.

The Justice Department's interpretation for the CIA sought to provide guidance on what sorts of aggressive treatments might not fall within the legal definition of torture.

The 2002 memo, for example, included the interpretation that "it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture." The memo named seven techniques that courts have considered torture, including severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person.

"While we cannot say with certainty that acts falling short of these seven would not constitute torture," the memo advised, ". . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law."

"For purely mental pain or suffering to amount to torture," the memo said, "it must result in significant psychological harm of significant duration, e.g., lasting for months or even years." Examples include the development of mental disorders, drug-induced dementia, "post traumatic stress disorder which can last months or even years, or even chronic depression."

Wartime authority

Of mental torture, however, an interrogator could show he acted in good faith by "taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience" to show he or she did not intend to case severe mental pain and that the conduct, therefore, "would not amount to the acts prohibited by the statute."

In 2003, the Defense Department conducted its own review of the limits that govern torture in consultation with experts at the Justice Department and other agencies. The aim of the March 6, 2003, review, conducted by a working group that included representatives of the military services, the Joint Chiefs of Staff and the intelligence community, was to provide a legal basis for what the group's report called "exceptional interrogations."

Much of the reasoning in the group's report and in the Justice Department 2002 memo overlap. The documents, which address treatment of al Qaeda and Taliban detainees, were not written to apply to detainees held in Iraq.

In a draft of the working group's report, for example, Pentagon lawyers approvingly cited the Justice Department's 2002 position that domestic and international laws prohibiting torture could be trumped by the president's wartime authority and any directives he issued.

At the time, the Justice Department's legal analysis, however, shocked some of the military lawyers who were involved in crafting the new guidelines, said senior defense officials and military lawyers.

"Every flag JAG lodged complaints," said one senior Pentagon official involved in the process, referring to the judge advocate generals who are military lawyers of each service.

"It's really unprecedented. For almost 30 years we've taught the Geneva Convention one way," said a senior military attorney. "Once you start telling people it's okay to break the law, there's no telling where they might stop."

A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in the world. But the Pentagon group's report, prepared under supervision of General Counsel William J. Haynes II, said that "in 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."

Defining torture

The Pentagon group's report, divulged Monday by the Wall Street Journal and obtained by The Post, said further that the 1994 law barring torture "does not apply to the conduct of U.S. personnel" at Guantanamo Bay.

It also said the anti-torture law did apply to U.S. military interrogations that occurred outside U.S. "maritime and territorial jurisdiction," such as in Iraq or Afghanistan. But it said both Congress and the Justice Department would have difficulty enforcing the law if U.S. military personnel could be shown to be acting as a result of presidential orders.

The report then parsed at length the definition of torture under domestic and international law, with an eye toward guiding military personnel about legal defenses.

The Pentagon report uses language very similar to that in the 2002 Justice Department memo written in response to the CIA's request: "If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," the draft states. "In that case, DOJ [Department of Justice] believes that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

The draft goes on to assert that a soldier's claim that he was following "superior orders" would be available for those engaged in "exceptional interrogations except where the conduct goes so far as to be patently unlawful." It asserts, as does the Justice view expressed for the CIA, that the mere infliction of pain and suffering is not unlawful; the pain or suffering must be severe.

A Defense Department spokesman said last night that the March 2003 memo represented "a scholarly effort to define the perimeters of the law" but added: "What is legal and what is put into practice is a different story." Pentagon officials said the group examined at least 35 interrogation techniques, and Rumsfeld later approved using 24 of them in a classified directive on April 16, 2003, that governed all activities at Guantanamo Bay. The Pentagon has refused to make public the 24 interrogation procedures.

Staff writer Josh White contributed to this report.

Memo Offered Justification for Use of Torture

Justice Dept. Gave Advice in 2002

By Dana Priest and R. Jeffrey Smith
Washington Post Staff Writers
Tuesday, June 8, 2004; Page A01
http://www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html

Human rights groups expressed dismay at the Justice Department's legal reasoning yesterday.

But a spokesman for the White House counsel's office said, "The president directed the military to treat al Qaeda and Taliban humanely and consistent with the Geneva Conventions."

The Justice Department's interpretation for the CIA sought to provide guidance on what sorts of aggressive treatments might not fall within the legal definition of torture.

Of mental torture, however, an interrogator could show he acted in good faith by "taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience" to show he or she did not intend to cause severe mental pain and that the conduct, therefore, "would not amount to the acts prohibited by the statute."

In 2003, the Defense Department conducted its own review of the limits that govern torture, in consultation with experts at the Justice Department and other agencies. The aim of the March 6, 2003, review, conducted by a working group that included representatives of the military services, the Joint Chiefs of Staff and the intelligence community, was to provide a legal basis for what the group's report called "exceptional interrogations."

Much of the reasoning in the group's report and in the Justice Department's 2002 memo overlap. The documents, which address treatment of al Qaeda and Taliban detainees, were not written to apply to detainees held in Iraq.

"Every flag JAG lodged complaints," said one senior Pentagon official involved in the process, referring to the judge advocate generals who are military lawyers of each service.

A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in the world. But the Pentagon group's report, prepared under the supervision of General Counsel William J. Haynes II, said that "in 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 Pentagon group's report, divulged yesterday by the Wall Street Journal and obtained by The Post, said further that the 1994 law barring torture "does not apply to the conduct of U.S. personnel" at Guantanamo Bay.

The report then parsed at length the definition of torture under domestic and international law, with an eye toward guiding military personnel about legal defenses.

Staff writer Josh White contributed to this report.

Justice memo approved torture of al-Qaida

The document was later used in a Pentagon report regarding Guantanamo Bay rules.

By Dana Priest and R. Jeffrey Smith
The Washington Post
Tuesday, June 8, 2004
http://www.heraldnet.com/stories/04/06/08/wir_torture001.cfm

WASHINGTON - In August 2002, the Justice Department advised the White House that torturing al-Qaida terrorists in captivity abroad "may be justified," and that international laws against torture "may be unconstitutional if applied to interrogations" conducted in President Bush's war on terrorism, according to a newly obtained memo.

If a government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the al-Qaida terrorist network," said the memo, from the Justice Department's office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later.

The legal reasoning in the 2002 memo, which covered treatment of al-Qaida detainees in CIA custody, was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Department's detention center at Guantanamo Bay, Cuba.

At that time, Defense Secretary Donald Rumsfeld had asked the lawyers to examine the logistical, policy and legal issues associated with interrogation techniques.

Bush administration officials say flatly that it has abided by international conventions barring torture, and that detainees at Guantanamo and elsewhere have been treated humanely, except in the cases of abuse at Abu Ghraib prison in Iraq for which seven military police soldiers have been charged.

In the 2002 memo, written for the CIA and addressed to White House Counsel Alberto Gonzales, the Justice Department defined torture in a much narrower way, for example, than does the U.S. Army, which has historically carried out most wartime interrogations.

In the Justice Department's view - contained in a 50-page document signed by Assistant Attorney General Jay Bybee and obtained by The Washington Post - inflicting moderate or fleeting pain does not necessarily constitute torture. Torture, the memo says, "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

A spokesman for the White House counsel's office said, "The president directed the military to treat al-Qaida and Taliban humanely and consistent with the Geneva Conventions."

The Justice Department's interpretation for the CIA sought to provide guidance on what sorts of aggressive treatments might not fall within the legal definition of torture.

"While we cannot say with certainty that acts falling short of these seven would not constitute torture," the memo advised, " ... we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law."

"For purely mental pain or suffering to amount to torture," the memo said, "it must result in significant psychological harm of significant duration, e.g., lasting for months or even years."

U.S.'s Ashcroft Won't Release or Discuss Torture Memo

June 8, 2004
http://quote.bloomberg.com/apps/news?pid=10000103&sid=aynk7_r_cQik&refer=us

(Bloomberg) -- U.S. Attorney General John Ashcroft, warned that he might be risking a contempt citation from Congress, told lawmakers he won't release or discuss memoranda that news reports say offered justification for torturing suspected terrorists.

Democratic members of the Senate Judiciary Committee asked Ashcroft about reports in the Wall Street Journal, the Washington Post and the New York Times that the Justice Department advised the White House in 2002 and 2003 that it might not be bound by U.S. and international laws prohibiting torture. Ashcroft said he wouldn't reveal confidential advice he gave to President George W. Bush or discuss it with Congress.

"This administration rejects torture,'' Ashcroft said as he refused to answer whether he personally believes torture can be justified under certain circumstances. Bush "has not directed or ordered any conduct that would violate the Constitution of the United States,'' any U.S. laws or any international treaties, Ashcroft said.

The Washington Post, citing a Justice Department memo, said government lawyers told the White House in August 2002 that torturing captured al-Qaeda members abroad may be justified in the war on terrorism.

Senator Joseph Biden, a Delaware Democrat, challenged Ashcroft to say whether he was invoking executive privilege in refusing to give Congress the Justice Department memos. Ashcroft said he wasn't invoking executive privilege.

"You might be in contempt of Congress, then,'' Biden replied. "You have to have a reason. You better come up with a good rationale.''

Senator Edward Kennedy, a Massachusetts Democrat, held up copies of some of the photographs that have been released that depict abuses against inmates at Abu Ghraib prison near Baghdad. Seven U.S. military police soldiers have been charged in the abuses.

"This is what directly results when you have that kind of memoranda out there,'' Kennedy said.

Ashcroft disagreed. "The kind of atrocities'' depicted in the photographs "are being prosecuted by this administration,'' he said. "They are being investigated by this administration. They are rejected by this administration.''

He also challenged the lawmakers on whether their questions were appropriate. "We are at war,'' Ashcroft said. "And for us to begin to discuss all the legal ramifications of the war is not in our best interest, and it has never been in times of war.''

LEGAL OPINIONS

Lawyers Decided Bans on Torture Didn't Bind Bush

By NEIL A. LEWIS and ERIC SCHMITT
The New York Times
June 8, 2004
http://www.nytimes.com/2004/06/08/politics/08ABUS.html

WASHINGTON, June 7 &emdash; A team of administration lawyers concluded in a March 2003 legal memorandum that President Bush was not bound by either an international treaty prohibiting torture or by a federal antitorture law because he had the authority as commander in chief to approve any technique needed to protect the nation's security.

The memo, prepared for Defense Secretary Donald H. Rumsfeld, also said that any executive branch officials, including those in the military, could be immune from domestic and international prohibitions against torture for a variety of reasons.

One reason, the lawyers said, would be if military personnel believed that they were acting on orders from superiors "except where the conduct goes so far as to be patently unlawful."

"In order to respect the president's inherent constitutional authority to manage a military campaign," the lawyers wrote in the 56-page confidential memorandum, the prohibition against torture "must be construed as inapplicable to interrogation undertaken pursuant to his commander-in-chief authority."

Senior Pentagon officials on Monday sought to minimize the significance of the March memo, one of several obtained by The New York Times, as an interim legal analysis that had no effect on revised interrogation procedures that Mr. Rumsfeld approved in April 2003 for the American military prison at Guantánamo Bay, Cuba.

"The April document was about interrogation techniques and procedures," said Lawrence Di Rita, the Pentagon's chief spokesman. "It was not a legal analysis."

Mr. Di Rita said the 24 interrogation procedures permitted at Guantánamo, four of which required Mr. Rumsfeld's explicit approval, did not constitute torture and were consistent with international treaties.

The March memorandum, which was first reported by The Wall Street Journal on Monday, is the latest internal legal study to be disclosed that shows that after the Sept. 11 terrorist attacks the administration's lawyers were set to work to find legal arguments to avoid restrictions imposed by international and American law.

A Jan. 22, 2002, memorandum from the Justice Department that provided arguments to keep American officials from being charged with war crimes for the way prisoners were detained and interrogated was used extensively as a basis for the March memorandum on avoiding proscriptions against torture.

The previously disclosed Justice Department memorandum concluded that administration officials were justified in asserting that the Geneva Conventions did not apply to detainees from the Afghanistan war.

Another memorandum obtained by The Times indicates that most of the administration's top lawyers, with the exception of those at the State Department and the Joint Chiefs of Staff, approved of the Justice Department's position that the Geneva Conventions did not apply to the war in Afghanistan. In addition, that memorandum, dated Feb. 2, 2002, noted that lawyers for the Central Intelligence Agency had asked for an explicit understanding that the administration's public pledge to abide by the spirit of the conventions did not apply to its operatives.

The March memo, a copy of which was obtained by The Times, was prepared as part of a review of interrogation techniques by a working group appointed by the Defense Department's general counsel, William J. Haynes. The group itself was led by the Air Force general counsel, Mary Walker, and included military and civilian lawyers from all branches of the armed services.

The review stemmed from concerns raised by Pentagon lawyers and interrogators at Guantánamo after Mr. Rumsfeld approved a set of harsher interrogation techniques in December 2002 to use on a Saudi detainee, Mohamed al-Kahtani, who was believed to be the planned 20th hijacker in the Sept. 11 terror plot.

Mr. Rumsfeld suspended the harsher techniques, including serving the detainee cold, prepackaged food instead of hot rations and shaving off his facial hair, on Jan. 12, pending the outcome of the working group's review. Gen. James T. Hill, head of the military's Southern Command, which oversees Guantánamo, told reporters last Friday that the working group "wanted to do what is humane and what is legal and consistent not only with" the Geneva Conventions, but also "what is right for our soldiers."

Mr. Di Rita said that the Pentagon officials were focused primarily on the interrogation techniques, and that the legal rationale included in the March memo was mostly prepared by the Justice Department and White House counsel's office.

The memo showed that not only lawyers from the Defense and Justice departments and the White House approved of the policy but also that David S. Addington, the counsel to Vice President Dick Cheney, also was involved in the deliberations. The State Department lawyer, William H. Taft IV, dissented, warning that such a position would weaken the protections of the Geneva Conventions for American troops.

The March 6 document about torture provides tightly constructed definitions of torture. For example, if an interrogator "knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith," the report said. "Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his control."

The adjective "severe," the report said, "makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the text provides that pain or suffering must be `severe.' " The report also advised that if an interrogator "has a good faith belief his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture."

The report also said that interrogators could justify breaching laws or treaties by invoking the doctrine of necessity. An interrogator using techniques that cause harm might be immune from liability if he "believed at the moment that his act is necessary and designed to avoid greater harm."

Scott Horton, the former head of the human rights committee of the Association of the Bar of the City of New York, said Monday that he believed that the March memorandum on avoiding responsibility for torture was what caused a delegation of military lawyers to visit him and complain privately about the administration's confidential legal arguments. That visit, he said, resulted in the association undertaking a study and issuing of a report criticizing the administration. He added that the lawyers who drafted the torture memo in March could face professional sanctions.