President Bush was vague, brusque and dismissive last week when reporters questioned him about the administration's legal position on the subject of torture. "The instructions went out to our people to adhere to law," he said. "That ought to comfort you."
We now know that the president misled his questioner and the public. There is no comfort, and little respect for existing law, in the August 2002 memorandum on "standards of conduct for interrogation" prepared by the Justice Department's Office of Legal Counsel. The memo, which Attorney General John Ashcroft refused to release last week, was published Monday in the Washington Post.
The memorandum was prepared at the request of the CIA, which wanted clear authorization from the White House before using harsh interrogation techniques on al-Qaida suspects at Guantanamo Bay, Cuba. CIA officials sought ironclad assurance that they wouldn't be vulnerable to prosecution if they stepped beyond the boundaries of the law as understood prior to Sept. 11, 2001. The White House forwarded the request to Assistant Attorney General John Bybee, who obliged with a detailed set of arguments that "the mere inflicting of pain and suffering on another is not torture."
What is torture? The answers provided in this memo are important for many reasons — not least because they provide a basis for later documents upholding the use of torture in the name of national security. (A March 2003 memo from a Defense Department working group — disclosed last week by The Wall Street Journal and The New York Times — drew heavily on arguments marshaled by the Office of Legal Counsel.)
Based on his reading of U.S. criminal statutes and international treaties on torture, Bybee reached this conclusion: "Physical pain accompanying torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions or death." It is hard to count the varieties of pain, abuse and humiliation that fall within those absurdly generous boundaries.
A second line of defense in the memo essentially places the commander-in-chief above the law in wartime. Anything that interferes with "the president's direction of such core war matters as the detention and interrogation of enemy combatants would thus be unconstitutional," the memo states. The lawyer gave his expert blessing to presidential power unchecked by the Constitution or any other constraint.
So this is what the president had in mind when he insisted last week that "We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort to you. And those were the instructions from me to the government."
No, they were not. The Justice Department's dry legal justification for brutality is a handbook for evading the law, not adhering to it. In ways the public is only beginning to understand, the mindset behind this document led top Bush administration officials to sanction the use of shameful interrogation techniques, some of which were approved initially at Guantanamo Bay and later imported into Iraq.
It is not possible at this point to say that the abuses at Abu Ghraib were set in motion by direct orders from Washington, but any claim that "a few bad apples" humiliated and roughed up Iraqi prisoners at Abu Ghraib, with no authorization from above, is ludicrous on its face.
Amendments offered in both houses of Congress would reaffirm the commitment of the United States to reject torture. Those measures are a good start, but this "nation of law" also needs a thorough investigation of the facts and a wide-open debate. Behind closed doors, our government has betrayed the spirit of the Constitution and the basic principles of human rights. An outraged public should condemn the Bush administration's excesses and call it to account.
Copyright 2004, The Daily Camera