MARGARET WARNER: Today's controversy on Capitol Hill was prompted by news reports outlining a March 2003 legal memorandum that civilian and military lawyers prepared for Defense Secretary Rumsfeld. According to the reports the draft memorandum argued that when the nation's security was at stake, the president wasn't bound by laws or treaties outlawing torture.
The stories' quoted the memo as saying in part to respect the president's inherent constitutional authority to manage a military campaign the prohibition against torture must be construed as inapplicable to interrogations that are taken pursuant to his commander in chief's authority. The 2003 memo was based in part on two earlier memos prepared in 2002 by Justice Department lawyers. And Attorney General John Ashcroft was grilled about all this today by Democrats on the Senate Judiciary Committee.
SEN. PATRICK LEAHY, D-Vt.: Did your department issue a memorandum that would suggest that torture is allowed under certain circumstances, as the press has reported?
ATTORNEY GENERAL JOHN ASHCROFT: I want to confirm that the president has not directed or ordered any conduct that would violate the Constitution of the United States, that would violate any one of these enactment's of the United States Congress, or that would violate the provisions of any of the treaties as they have been entered into by the United States, the president, the administration and this government.
SEN. LEAHY: Has or has not been any order directed from the president with respect to interrogation of detainees, prisoners or combatants, yes or no?
ATTN. GEN. ASHCROFT: I'm not in a position to answer that question.
SEN. LEAHY: Does that mean because you don't know, or you don't want to answer? I don't understand?
ATTN. GEN. ASHCROFT: The answer to that question is yes.
SEN. LEAHY: You don't know? Is there such an order?
ATTN. GEN. ASHCROFT: For me to comment on what the president -- what I advise the president --
SEN. LEAHY: I'm not asking that.
ATTN. GEN. ASHCROFT: -- what the president's activity is, is appropriate. I will just say this, that he has made no order that would require or direct the violation of any law of the United States enacted by the Congress, or any treaty to which the United States is party, as ratified by the Congress or the Constitution of the United States.
SEN. TED KENNEDY, D-Mass.: There are three memoranda -- January 9, 2002, signed by John Yoo; the August 2002 Justice Department, the memo -- and the March 2000 -- the inter-agency working group. Those are three memoranda. Will you provide those to the committee?
ATTN. GEN. ASHCROFT: No, I will not.
SEN. KENNEDY: Under what basis?
JOHN ASHCROFT: We --
SEN. KENNEDY: What's the justification not providing it?
ATTN. GEN. ASHCROFT: We believe that to provide this kind of information would impair the ability of advice-giving in the Executive Branch to be candid, forthright, thorough, and accurate at all times.
SEN. KENNEDY: We've been looking to about where the president -- because 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 directly results when you have that kind of memoranda out there.
ATTN. GEN. ASHCROFT: First of all, let me completely reject the notion that anything that this president has done or the Justice Department has done has directly resulted in the kinds of atrocities which were cited. That is false. It is an inappropriate conclusion.
SEN. KENNEDY: General, has the president authorized you to invoke the executive privilege today on these documents?
ATTN. GEN. ASHCROFT: I am not going to reveal discussions -- whether I've had them or not had them with the president. He asked me to deal with him as a matter of confidence. I have not invoked the executive privilege today. I have explained to you why I'm not turning over the documents.
SEN. KENNEDY: Well, what are you invoking then?
ATTN. GEN. ASHCROFT: I have not invoked anything. I have just explained to you why I am not turning over the documents.
SEN. JOE BIDEN, D-Del.: Thank you very much. Well, General, that means you may be in contempt of Congress then. You got to have a reason not to answer our questions, as you know from you sitting up here. There may be a rationale for executive privilege that misses the point, but -- but, you know, you have to have a reason. You are not allowed, under our Constitution, not to answer our questions. And that ain't -- that ain't constitutional.
SEN. DIANNE FEINSTEIN, D-Calif.: So these memos actually either reverse or substantially alter 30 years of interpretation by our body as well as the executive of the Geneva Conventions.
ATTN. GEN. ASHCROFT: But the only people who are accorded the protections of the Geneva Convention are, number one, according to the convention itself, those nations that are high contracting parties to the convention. Al-Qaida is not a high-contracting party to the Geneva Convention. It repudiates the rules of war.
Now, the law against the torture applies. When the Congress enacted the torture statute, it enacted a law that said it applied everywhere outside the United States. But when the Congress defined the United States, it's not simple: It will sometimes include military bases, it will sometimes include consular offices, it will sometimes include the residences or embassy offices. And when the Congress of the United States makes these definitions, that's what I have to live by.
MARGARET WARNER: For more on all this, we're joined by Jess Bravin of the Wall Street Journal. He broke the story about the March 2003 memo yesterday. Welcome. Tell us briefly the genesis of this memorandum.
JESS BRAVIN: Well, in late 2002, interrogators at Guantanamo Bay reported they were having trouble getting information from recalcitrant prisoners, a couple in particular who they described as being high intelligence value prisoners. And they began, according to interrogators and military officials we talked to, trying all sorts of unorthodox methods including, for example, the women's underwear on the head method that later resurfaced in Iraq. In one instance at least threatening to have relatives of a prisoner killed if he didn't talk.
And these techniques got a number of military officials upset. They were concerned that they went way too far and might not be lawful. That event led Defense Secretary Rumsfeld to ask his general counsel, William J, Haynes to appoint a working group to examine what exactly the legal and policy parameters were for interrogation of detainees and what's called the global war on terrorism. That led to the document that we reported on, on Monday, which is one of a series of legal opinions that have come out of the administration since 9/11.
MARGARET WARNER: So there was in other words a continuum between the two Justice Department documents of last or of 2002 and 2003, this one in 2003?
JESS BRAVIN: Oh, sure. I mean, ever since 9/11, the Justice Department and other legal arms of the administration have been exploring a theory of executive power, that the president as commander in chief has sweeping powers to do what he thinks is necessary to protect the country. That's been a hallmark of the administration's legal view since 9/11.
MARGARET WARNER: So explain the key argument made in the March 2003 memorandum in terms of why the United States does not have to abide by anti-torture conventions of the Geneva conventions.
JESS BRAVIN: Well, I mean that memorandum had several interesting legal points. The one that you're focusing on here is a second sun that says the title of it is something like "conditions under which criminal conduct might not be unlawful" or something like that. And it lists a series of rationales as to why violating the torture statute and the international convention against torture and other laws might be not unlawful in the way that legal documents sometimes put it.
The first one was called commander in chief authority. You cited that earlier in the program: This view that the torture statute could not be applied to the president if he felt it was necessary because of his inherent power as commander in chief. It also said that the president could conceivably authorize subordinates to exercise that power in his behalf. Now it's important to note that the Pentagon and the White House have made an issue of the fact that this is legal advice. It doesn't mean that this is what they're actually doing. They've said this is not what they are actually doing. It was a result of -- you know -- lawyers exploring why this possible series of hypothetical possibilities. So let's make that clear.
But the commander in chief argument was pretty interesting. It said that if he does want to exercise his power, he wants subordinates to disregard the torture statute, he should issue a written finding or directive that would serve as evidence of that. That's what some of the senators were asking about today on the... at the Judiciary Committee.
MARGARET WARNER: Now, one month after this legal memorandum or at least this draft was prepared, Secretary Rumsfeld issued new interrogation techniques as I understand it -- on April 16 of 2003 at least as they applied to Guantanamo. Were you able to determine through your reporting to what degree that was based on either the legal reasoning or the... well, the legal reasoning of this earlier memo?
JESS BRAVIN: Well, it's a long memo. These are all long memos. They invoke all kinds of legal reasoning. According to people who have seen the interrogation matrix, according to the official statements of the Pentagon spokesman, the 24 or so techniques that Secretary Rumsfeld approved fall far short of anything that they would consider to be torture. Now of course we have to take their word for it because they haven't revealed what those techniques are. But according to the Pentagon spokesman, 17 of those techniques are ones that already are used in the army. They're part of the army's field manual on interrogation that's been in place for years. Seven of them are not... four of them require Rumsfeld's personal authorization before they can be used. We were told by the Pentagon that those four or one of those four techniques has been used on two prisoners. They wouldn't tell us exactly what it was but they said it was something that involved isolation.
MARGARET WARNER: So, in other words, the Pentagon's assertion and position is that despite the legal argument made in that memo, that nothing Secretary Rumsfeld approved does, in fact, violate the standards of the Geneva Convention or the US anti-torture law?
JESS BRAVIN: That's what they say, yes.
MARGARET WARNER: And finally, you heard Senator Kennedy say, well, this is also... this is what led to the abuses at Abu Ghraib. From the people you've talked to, is there a connection there?
JESS BRAVIN: I don't know that there is a direct connection between these legal memoranda that are being written at the Pentagon and the Justice Department and what's going on in the field. I don't think they have those classified memoranda. But it is true, according to many military officials who we spoke to, that a school of thought after 9/11 developed saying that there really are no rules here. You're dealing with an enemy that does not respect the Geneva Conventions or the laws of war. We have to reciprocate in order to defeat them.
So I don't know that there's a direct link between this document and what we've seen in Iraq and what has been alleged to have been done to prisoners in Afghanistan and elsewhere by US personnel, but certainly there is a fair segment of military and national security people who believe that the rules restraining harsh interrogation techniques are no longer appropriate.
MARGARET WARNER: Jess Bravin of the Wall Street Journal, thank you.