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June 13, 2004
When torture is okay
The Bush administration has repeatedly called the torture of prisoners at Abu Ghraib the acts of a few individuals, but we've seen in other reports that the use of torture has been far more widespread than the administration has been willing to admit, indicating that the problem may be system-wide. Other reports show that officers in the chain of command had authorized, condoned, or observed the abuse at Abu Ghraib.
Why is this important?
First of all, if Iraq is a campaign for the hearts and minds of Iraqis, you don't succeed by torturing them. And when you scramble to salvage the situation once the rumors and reports have been verified, you don't cover up the problem and blame it on a few fall guys.
Secondly, if Iraq is supposed to become a democracy that has a transformative effect on the Middle East, you don't mimic the actions of the dictator you've overthrown. While there is obviously no comparison between the United States and the authoritarian governments of the region, a scandal like this gives your opponents the ammunition to justify their own actions. You also provide extremist organizations with a lot of good media to help recruit new members.
Third, in a week where the phrase "city on a hill" has been repeated dozens of times in Reagan tributes and memorials, we ought to think about what that means for our own actions. If the eyes of the world are upon us, and if we believe ourselves to be proponents of the rule of law, equality, and human rights, we need to hold ourselves to the highest standards. This applies especially to our elected officials and political appointees, since they represent us to the entire world.
This is why the discovery of DOJ and Pentagon memos exploring the legality of the use of torture should shock and shame all Americans. If you know that a certain action is wrong, what does it say about your character when you try to look for ways in which you can undertake that action and justify it to others?
"I shouldn't kill my neighbor, but I wonder how I can kill him and have it be ok?"
"I shouldn't cheat on my wife, but I wonder how I can sleep around and have it be ok?
Who are these people? Are they so devoid of basic morality?
In August 2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad "may be justified," and that international laws against torture "may be unconstitutional if applied to interrogations" conducted in President Bush's war on terrorism, according to a newly obtained memo.
...
In the Justice Department's view -- contained in a 50-page document signed by Assistant Attorney General Jay S. Bybee and obtained by The Washington Post -- inflicting moderate or fleeting pain does not necessarily constitute torture. Torture, the memo says, "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
By contrast, the Army's Field Manual 34-52, titled "Intelligence Interrogations," sets more restrictive rules. For example, the Army prohibits pain induced by chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time; and food deprivation. Under mental torture, the Army prohibits mock executions, sleep deprivation and chemically induced psychosis.
Human rights groups expressed dismay at the Justice Department's legal reasoning yesterday.
"It is by leaps and bounds the worst thing I've seen since this whole Abu Ghraib scandal broke," said Tom Malinowski of Human Rights Watch. "It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations."
...
In 2003, the Defense Department conducted its own review of the limits that govern torture, in consultation with experts at the Justice Department and other agencies. The aim of the March 6, 2003, review, conducted by a working group that included representatives of the military services, the Joint Chiefs of Staff and the intelligence community, was to provide a legal basis for what the group's report called "exceptional interrogations."
Much of the reasoning in the group's report and in the Justice Department's 2002 memo overlap. The documents, which address treatment of al Qaeda and Taliban detainees, were not written to apply to detainees held in Iraq.
In a draft of the working group's report, for example, Pentagon lawyers approvingly cited the Justice Department's 2002 position that domestic and international laws prohibiting torture could be trumped by the president's wartime authority and any directives he issued.
At the time, the Justice Department's legal analysis, however, shocked some of the military lawyers who were involved in crafting the new guidelines, said senior defense officials and military lawyers.
"Every flag JAG lodged complaints," said one senior Pentagon official involved in the process, referring to the judge advocate generals who are military lawyers of each service.
"It's really unprecedented. For almost 30 years we've taught the Geneva Convention one way," said a senior military attorney. "Once you start telling people it's okay to break the law, there's no telling where they might stop."
Link: A portion of the DOJ memo obtained by the Wall Street Journal
Update: 2004-06-13 11:32 PM
Link: The Washington Post has provided copies of the DOJ and Pentagon memos. The links are on the right side of the page under "Memo on Torture."
Posted by glyphic at June 13, 2004 03:16 PM