A confidential Justice Department legal memo sent to the White House in August 2002 concluded that interrogation of detainees can involve “cruel, inhuman or degrading” acts without violating U.S. and international laws prohibiting torture.
Moreover, the memo argued that due to the “current war against al-Qaida and its allies,” a legal prohibition against detainee torture does not apply because it may be viewed as an unconstitutional infringement on the president’s powers as commander-in-chief to conduct war.
And, the legal analysis says, even if an interrogation method violates anti-torture laws — including intentional homicide — the actions could be justified by invoking the defense of “necessity,” also known as the “choice of evils,” which holds that the taking of one life to save two others is permissible.
Also, the memo said, the “self-defense” of U.S. citizens could justify detainee torture.
The existence of the memo, which was sent to Alberto R. Gonzales, counsel to the president, was first revealed last Tuesday by The Washington Post. Later that day, there were heated exchanges on Capitol Hill when Attorney General John Ashcroft refused to provide that memo and others to the Senate Judiciary Committee. Ashcroft claimed they constituted confidential legal advice for President Bush and, therefore, Congress had no claim to them.
According to the Post, the memo was written at the request of the CIA, which wanted authority to conduct more aggressive interrogations than were permitted prior to the 9/11 attacks. The interrogations were of suspected al-Qaida members whom the CIA had apprehended outside the United States. The CIA asked the White House for legal guidance and the White House asked Justice Department’s Office of Legal Counsel for its legal opinion.
The 50-page memo has provided ammunition to Bush administration critics who claim abuses at Abu Ghraib prison in Iraq were a natural outgrowth of such a legal interpretation of what is permissible in the interrogation of detainees.
Since the scandal exploded in late April, a number of memos leaked to the media — including one completed in March 2003 by Pentagon lawyers for Defense Secretary Donald Rumsfeld — have shown administration attorneys providing legal justification for avoiding the constraints of international law barring mistreatment of detainees.
Administration officials have steadfastly said they do not approve of “torture” in interrogations, but the Aug. 1, 2002, memo makes clear there are various interpretations of the word.
Under the U.S. Code, torture is said to be acts inflicting “severe pain or suffering, whether mental or physical.”
However, the Justice Department memo seizes on the adjective “severe,” and offers that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.