A memo classified by Defense Secretary Donald Rumsfeld in 2003 explores ways of conducting interrogations in the war on terror that would allow guards to evade future prosecutions for torture. In a series of minutely argued points that appear designed to evade restrictions on abusive interrogation techniques, the memo concludes that “excessive force” is illegal only when it is “malicious and sadistic.” It also argues that treatment of prisoners should be defined as torture only when “the infliction of pain” is an interrogator’s “precise objective.”
The memo was first disclosed by The Wall Street Journal on Monday. Along with several other memos to come out of the Justice Department’s Office of Legal Counsel—two them previously disclosed by NEWSWEEK—the 56-page DoD memo is believed to form the main basis for legal arguments justifying intense interrogation methods used at Guantanamo Bay. Some of those methods were later believed to be adopted for use at Abu Ghraib prison in Iraq.
It is not clear to what extent the memo’s arguments eventually became administration policy. But a number of these arguments appear to provide a clear basis for many of the detention and interrogation practices that the Red Cross and witnesses allege were used against the Taliban and Al Qaeda as well as Iraqis. Among these practices were the selective removal of clothes and food, limiting a prisoner’s access to light, and forcing a prisoner into “stress” positions for long periods of time.
Perhaps the most striking part of the memo is its argument that the president, as commander-in-chief, is not bound to observe international laws against torture, or even a 1996 U.S. law enacted to comply with the U.N.-sponsored Convention Against Torture. “In order to respect the President’s inherent constitutional authority to manage a military campaign, [the U.S. law prohibiting torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority,” the memo says. “In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas.”
Some legal scholars contacted by Newsweek were appalled by what they called the unsoundness of such arguments. “There is little jurisprudential basis for this,” said Scott Horton, a well-known human-rights lawyer based in New York.
The memo can be read at: http://msnbc.msn.com/id/5166951/site/newsweek/