Ashcroft stonewalls

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ASHCROFT STONEWALLS / Bush Didn't Order Any Breach of Torture Laws, Ashcroft Says / By NEIL A. LEWIS

WASHINGTON, June 8 — Attorney General John Ashcroft, whose subordinates have written confidential legal memorandums saying the administration is not bound by prohibitions against torture, told a Senate committee on Tuesday that President Bush had "made no order that would require or direct the violation" of either international treaties or domestic laws prohibiting torture.

Appearing before the Senate Judiciary Committee, Mr. Ashcroft was questioned about a cascade of recently disclosed memorandums in which lawyers from his department as well as those from the Defense Department and other agencies provided legal arguments that inflicting pain in interrogating people detained in the fight against terrorism did not always constitute torture.

In heated exchanges with Democrats on the committee, Mr. Ashcroft refused to provide several of the memorandums, saying they amounted to confidential legal advice given to the president and did not have to be shared with Congress.

For the nearly three hours of Mr. Ashcroft's appearance, the committee room became the stage for a debate that has ranged across all three branches of the government since the attacks of Sept. 11, 2001, about the proper reach of a president's power in wartime.

Senator Edward M. Kennedy, a Massachusetts Democrat who is a committee member, challenged Mr. Ashcroft on his unwillingness to release the memorandums and said that the reported abuses of Iraqi prisoners at the Abu Ghraib prison were the inevitable outcome of the administration's efforts to find ways to evade legal responsibility.

Mr. Kennedy cited one of the memorandums reported in newspapers on Tuesday that concluded President Bush was not bound either by international treaties prohibiting torture or by federal anti-torture law because as commander-in-chief Mr. Bush was responsible for protecting the nation.

" In other words, the president of the United States has the responsibility," Mr. Kennedy said, holding up a photograph of prisoners cowering before American guards and dogs at Abu Ghraib. "We know when we have these kinds of orders, what happens. We get the stress test, we get the use of dogs, we get the forced nakedness that we've all seen on these and we get the hooding. This is what you get with those kind of memoranda out there."

The administration has responded to the memorandums by saying they were merely legal opinions offered as policies were being formulated.

" First of all," Mr. Ashcroft said, "this administration opposes torture," adding that the "kind of atrocities displayed in the photographs are being prosecuted by this administration."

Mr. Ashcroft strove to make a distinction between memorandums that may have provided theoretical legal justifications for torture and his assertion that there had never been any directive that actually authorized its use.

But the memorandums, by their numbers and their arguments — aimed at justifying the use of interrogation techniques inflicting pain by spelling out instances when this did not legally constitute torture and the inapplicability of international treaties — have produced outrage from international human rights groups and members of Congress, mostly Democrats.

Over the past few weeks, The New York Times, Newsweek, The Washington Post and The Wall Street Journal have disclosed memorandums that show a pattern in which administration lawyers set about devising arguments to avoid constraints against mistreatment and torture.

Mr. Ashcroft's appearance before the committee had been scheduled before most of the memorandums were disclosed, and he looked deeply uncomfortable under the harsh questioning.

He said several times that critics consistently failed to take into account that the United States was at war.
Mr. Kennedy challenged Mr. Ashcroft, telling him he could not withhold the memorandums from Congress unless there was an invocation of executive privilege, something only the president himself can do. Mr. Ashcroft seemed uncertain when he was asked if he had spoken to the president about invoking it.

He eventually said he was not invoking the privilege but that it was simply not good policy to openly debate what powers a president had in wartime.

Senator Joseph R. Biden Jr., Democrat of Delaware, in a heated exchange with Mr. Ashcroft, asked him if he believed torture was ever justified. When he first declined to answer, Mr. Biden accused him of being evasive, and Mr. Ashcroft replied: "You know I condemn torture. I don't think it's productive, let alone justified."

But Mr. Biden persisted, saying: "There's a reason why we sign these treaties: to protect my son in the military. That's why we have these treaties, so when Americans are captured they are not tortured. That's the reason in case anybody forgets it."

One of the recently published memorandums, dated March 6, 2003, provides elaborate and tightly constructed definitions of torture in an effort to to allow interrogators to avoid being charged with that offense. 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."

Another memorandum, written in August 2002 and disclosed Tuesday by The Washington Post, appeared to establish a basis for the use of torture for senior Al Qaeda operatives in custody of the C.I.A. That memorandum was written by Jay S. Bybee, then the associate attorney general. Mr. Bybee, now a federal appeals court judge in California, did not respond to telephone messages.

Mr. Ashcroft said proof that the administration was opposed to torture in practice, despite any legal memorandums, could be seen in the establishment of a task force to prosecute charges of abuse against United States contractors and soldiers.

While most Republican committee members defended Mr. Ashcroft, Senator Larry Craig, an Idaho Republican, told Mr. Ashcroft that he was disturbed by the growing power of the executive branch.

" I hope that in the end," Mr. Craig said, "Saddam Hussein will not have taken away from us something that our Constitution, in large part, granted us, and that we have it taken away in the name of safety and security."