a few days ago someone posted about a wall street journal article that detailed how american interregators were authorized to use torture, or that if they did, that they would remain above the law, per president bush. i found this article on economist.com, which i think refers to the same subject. note, that the use of 'torture' isnt authorized, as the previous post would have had us beleive, rather, the article refers to a memo from an administration lawyer who was making recomendations on what might me admissable in interrogations. if the administration adhears to this lawyers advice, and puts these things into practice, well then, thats another story all together isnt it? so heres the article. judge for yourself.
Why the debate on torture will not go away
FOR a moment last week, the clouds parted for George Bush. After months of bad news, he stepped out at the G8 summit and at Ronald Reagan's dignified funeral with a UN endorsement of his plan for Iraq, backing for his “Broader Middle East� initiative and the fastest nine-month period of economic growth since 1984.
Mr Bush even had some modestly good news from the polls. Admittedly, John Kerry is still ahead in the horse race—but by little more than in May. Moreover, the “generic ballot� (between the parties in the race for Congress) shows Democrats an amazing 19 points ahead—an alarming figure when it is rare for either side to be more than ten points up. And 58% do think the country is on the wrong track, compared with 34% who think it is on the right one. But the long decline in the president's ratings seems to have bottomed out.
An apology to Muslims
Jun 17th 2004
Is torture ever lawful?
Jun 10th 2004
United States
Human rights
War in Iraq
US Election 2004
Terrorism
Human Rights Watch reports on the Iraq abuse scandal.
In one or two areas, Mr Bush's numbers have perked up. A Gallup poll showed his overall approval a couple of points higher; ditto his rating on the war on terror. Mr Bush is holding on to his core strength as commander-in-chief while the economy booms.
But as Harold Wilson once remarked, a week is a long time in politics. Normal service has just resumed. The past few days have seen bombs in Baghdad; the worst act of sabotage so far against Iraqi oil installations; claims by interrogators at Abu Ghraib that they reported instances of prisoner abuse earlier than senior officers have admitted; and a disagreement between the American and Iraqi governments on how and when to transfer Saddam Hussein to Iraqi jurisdiction.
Back home, a bipartisan group of former diplomats and military officials released a stinging criticism of Mr Bush's “overbearing� approach to foreign policy. And, as E.J. Dionne, a columnist, has pointed out, Mr Bush's re-election team—in a sure sign that it feels on the defensive—has stopped pointing out differences between the president's record on national security and Mr Kerry's; instead, the White House has started to accuse the Democrat of “me-too-ism� on Iraq (implying he would be no better).
All this, to some extent, is the mixture as before: the drip-drip of bad news. What is new and more embarrassing for Mr Bush is detailed evidence that the main source of legal opinion for his administration—the office of legal counsel in the Department of Justice—has been giving advice that Americans may (in the normal sense of the term) torture people abroad.
Last week, senators questioned John Ashcroft on this issue—and the attorney-general refused to hand over the memo in question. But in another sign that the administration's power over its subordinates is slipping, somebody leaked the full text to the Washington Post. The details make ugly reading for any friend of America.
The memo, which dates from August 2002, looks at the sections of the legal code (2340-2340A) which implement the UN Convention against Torture. It claims torture can be justified on three grounds.
First, it narrows the definition of torture, saying American law “was intended to proscribe only the most egregious conduct.� It is not controversial to say torture should be defined strictly. The UN convention says the pain inflicted must be “severe�. And the memo correctly identifies an important legal difference between torture and cruel and inhuman punishment. For instance, the European Court of Human Rights said Britain had used cruel treatment in Northern Ireland—hooding, sleep deprivation and so on—but that these things did not amount to torture.
Even so, the memo goes further than most ordinary opinion would in defining torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.� On the face of it, that means sliding needles under fingernails or holding someone's head under water to the point of drowning would not count as torture under the law.
Constitutionally, its second argument is no less striking. This is that the president can do whatever he wants in war, or, as the memo puts it, “enjoys complete discretion in the exercise of his commander-in-chief authority.� Interrogations, the memo says, are a “core function of the commander-in-chief.� Hence “we will not read a criminal statute as infringing on the president's ultimate authority in these areas.�
This comes near saying that the president is above the law when acting as commander-in-chief in wartime. No other president has made such a claim. The constitution gives Congress power to “make rules for the government and regulation of the land and naval forces.� This contradicts claims of untrammelled presidential authority. When Harry Truman tried to seize Youngstown Sheet and Tube in 1952 to prevent a steel shortage during the Korean war, the Supreme Court stopped him.
In addition, the memo claims the particular law in question (2340) cannot apply because it offends against presidential power. This law governs the activities of Americans abroad, so it applies almost entirely to soldiers and spies—people under the president's command. In other words, the memo argues that the law cannot really apply at all. Yet there is a long tradition in the United States against interpreting laws in such a way as to render them meaningless.
The memo's third argument is that, in rare cases when acts are so egregious that they amount to torture, and do not challenge presidential power, torturers are still able to claim immunity. They could only be prosecuted if it were shown their main intent was to inflict pain. If they intended to extract information (presumably the point for all but sadists), that would be a defence under American law according to the memo. It also says they can use “self defence� to justify actions that might have prevented further attacks on America. International law admits the defence of “necessity� in the case of someone with information about, say, a ticking suicide bomber or imminent threat. But the memo goes far beyond that.
Ruth Wedgwood, a professor of international law at Johns Hopkins University (and often a defender of the Bush administration), points out that the memo defines its task oddly. Instead of looking at “what is the law governing torture?� it asks “what can we do and remain within the law?� As a result, the memo either ignores or glides over American and international laws that ban or limit torture. For instance, America has signed the Geneva conventions, one article of which says combatants in unconventional conflicts are not prisoners of war but “shall in all circumstances be treated humanely�. The memo claims this refers only to civil wars—a highly contentious view. It also ignores customary law banning torture even though America is using such law against al-Qaeda suspects in its military commissions. And it even ignores the president's own statement of June 2003: “the United States is committed to the worldwide elimination of torture and we are leading this fight by example.�
Given this eccentricity, it might be argued that these legal controversies do not matter. The memo was just one lawyer's opinion, not public policy. And it is true that Donald Rumsfeld, the defence secretary, who had authorised tougher interrogation methods in Afghanistan and Iraq, later changed his mind. A description of what is now permitted also appeared in the Washington Post last week—and the authorised techniques seem to fall well outside even normal definitions of torture, let alone the narrow ones used in the memo.
The trouble is that this one lawyer worked in the office that provides legal opinion for the whole administration. His views were solicited by someone up the chain of command (it is not known who). They subsequently informed a Pentagon report on interrogations. They were not a one-off. Even if policy did not change, the memo undermines the administration's “rotten apples� defence in Abu Ghraib.
Lastly, Mr Bush's reaction was not reassuring. Asked about the memo, he said “the instructions went out to our people to adhere to law. That ought to comfort you.� Now the instructions can be read, it is hard to be comforted. The unease they cause is likely to dog Mr Bush for some time
Mercy's eyes are blue
When she places them in front of you
Nothing holds a roman candle to
The solemn warmth you feel inside
A quick word on blocking ads
It looks like you are using an ad blocker. That's okay. Who doesn't? But without advertising revenue, we can't keep making this site awesome. Click the link below for instructions on disabling adblock.
