Lawyers Decided Bans on Torture Didn't Bind Bush /
By NEIL A. LEWIS and ERIC SCHMITT / Published: June 8, 2004in the NY Times
WASHINGTON, June 7 — A team of administration lawyers concluded
in a March 2003 legal memorandum that President Bush was not bound by either
an
international
treaty prohibiting torture or by a federal antitorture law because he had the
authority as commander in chief to approve any technique needed to protect
the nation's security.
The memo, prepared for Defense Secretary Donald H. Rumsfeld, also said that
any executive branch officials, including those in the military, could be immune
from domestic and international prohibitions against torture for a variety
of reasons.
One reason, the lawyers said, would be if military personnel believed that
they were acting on orders from superiors "except where the conduct goes
so far as to be patently unlawful."
"
In order to respect the president's inherent constitutional authority to manage
a military campaign," the lawyers wrote in the 56-page confidential memorandum,
the prohibition against torture "must be construed as inapplicable to
interrogation undertaken pursuant to his commander-in-chief authority."
Senior Pentagon officials on Monday sought to minimize the significance
of the March memo, one of several obtained by The New York Times, as an interim
legal analysis that had no effect on revised interrogation procedures that
Mr. Rumsfeld approved in April 2003 for the American military prison at Guantánamo
Bay, Cuba.
"
The April document was about interrogation techniques and procedures," said
Lawrence Di Rita, the Pentagon's chief spokesman. "It was not a legal
analysis."
Mr. Di Rita said the 24 interrogation procedures permitted at Guantánamo,
four of which required Mr. Rumsfeld's explicit approval, did not constitute
torture and were consistent with international treaties.
The March memorandum, which was first reported by The Wall Street Journal on
Monday, is the latest internal legal study to be disclosed that shows that
after the Sept. 11 terrorist attacks the administration's lawyers were set
to work to find legal arguments to avoid restrictions imposed by international
and American law.
A Jan. 22, 2002, memorandum from the Justice Department that provided arguments
to keep American officials from being charged with war crimes for the way prisoners
were detained and interrogated was used extensively as a basis for the March
memorandum on avoiding proscriptions against torture.
The previously disclosed Justice Department memorandum concluded that administration
officials were justified in asserting that the Geneva Conventions did not apply
to detainees from the Afghanistan war.
Another memorandum obtained by The Times indicates that most of the administration's
top lawyers, with the exception of those at the State Department and the Joint
Chiefs of Staff, approved of the Justice Department's position that the Geneva
Conventions did not apply to the war in Afghanistan. In addition, that memorandum,
dated Feb. 2, 2002, noted that lawyers for the Central Intelligence Agency
had asked for an explicit understanding that the administration's public pledge
to abide by the spirit of the conventions did not apply to its operatives.
The March memo, a copy of which was obtained by The Times, was prepared as
part of a review of interrogation techniques by a working group appointed by
the Defense Department's general counsel, William J. Haynes. The group itself
was led by the Air Force general counsel, Mary Walker, and included military
and civilian lawyers from all branches of the armed services.
The review stemmed from concerns raised by Pentagon lawyers and interrogators
at Guantánamo after Mr. Rumsfeld approved a set of harsher interrogation
techniques in December 2002 to use on a Saudi detainee, Mohamed al-Kahtani,
who was believed to be the planned 20th hijacker in the Sept. 11 terror plot.
Mr. Rumsfeld suspended the harsher techniques, including serving the detainee cold, prepackaged food instead of hot rations and shaving off his facial hair, on Jan. 12, pending the outcome of the working group's review. Gen. James T. Hill, head of the military's Southern Command, which oversees Guantánamo, told reporters last Friday that the working group "wanted to do what is humane and what is legal and consistent not only with" the Geneva Conventions, but also "what is right for our soldiers."