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Controversy Continues Over White House Role in Abuse

June 23, 2004 at 12:00 AM EDT


RAY SUAREZ: In the Oval Office yesterday, President Bush again asserted his administration’s stance on torture.

PRESIDENT GEORGE W. BUSH: I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being.

RAY SUAREZ: Hours later, the Bush administration released a thick batch of documents that showed top officials grappling with how to treat detainees from January 2002 to April 2003.

From a Feb. 7, 2002 memo signed by President Bush: “None of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan.” But, he said, ” United States armed forces shall continue to treat detainees humanely, consistent with military necessity.”

On Aug. 1, 2002, the Justice Department’s Office of Legal Counsel sent a memo and a letter to their White House counterparts. They defined torture this way, “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury, so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.”

Yesterday, officials said they rejected that memo and its assertions of vast presidential power in time of war. In October ’02, military officers at Guantanamo Bay in Cuba asked for legal guidance on more aggressive interrogation techniques, including the use of wet towels and dripping water to make detainees think they were drowning.

Defense Secretary Rumsfeld rejected those tactics, but approved 17 others in December 2002. Techniques like forcing a detainee to stand for as long as four hours, forced isolation for up to 30 days, deprivation of light, the use of 20-hour interrogations, removal of clothing, forced shaving of facial hair, inducing stress by use of detainee’s fears — for example, dogs, and use of mild physical contact that did not cause injury.

In one document, Secretary Rumsfeld asked why detainees could be forced to stand for only four hours, noting that he routinely stands at his desk for eight to 10 hours a day.

In January 2003, Rumsfeld rescinded his initial approval and said requests to use the expanded list of techniques would have to be cleared by him.

A working group on interrogation set up by the secretary concluded that it may be legal to use tactics with al-Qaida and Taliban prisoners that wouldn’t be allowed with ordinary prisoners of war. Today, a group of Democratic congressmen urged a congressional review and demanded more documents from the administration.

REP. HENRY WAXMAN: I think we’re looking at a classic case of abuse of power. This administration has been involved and has been knowledgeable about what has happened to prisoners in Abu Ghraib, Afghanistan and Guantanamo Bay. And we don’t want them to just be investigating themselves. Congress needs to do that.

RAY SUAREZ: The Department of Justice has said it will draft a memo outlining new interrogation techniques.

RAY SUAREZ: For more on what those memos mean and show, we get two views. Eugene Fidell is president of the National Institute of Military Justice and a former lawyer in the United States Coast Guard. Ruth Wedgwood is a professor of international law and diplomacy at Johns Hopkins University. Eugene Fidell, what do you conclude from your reading of both the original Justice Department-generated opinions on what torture is and the responses they got back from the Defense Department and the White House?

EUGENE FIDELL: I think there were some aspects to the original memoranda that were extremely disturbing; specifically the notion that the president, as commander in chief, was essentially above the law.

And I think that, if anything, that set off a firestorm of controversy here. What I see is a lot of government time… lawyer time being expended on a subject that most people I think would consider off limits in any event.

RAY SUAREZ: Were you comforted, reassured, by the tone of some of the communications in response to those original memos — not affirming their findings?

EUGENE FIDELL: No, I was dismayed, as a matter of fact, because this sort of dialogue that had been going on, conversation within the executive branch, continued on and on within terms of reference that I thought were very, very surprising. I was shocked by the whole conversation, actually.

RAY SUAREZ: Professor Wedgwood, I ask you the same question. What did you conclude from watching this evolving communication between the White House and its lawyers?

RUTH WEDGWOOD: There were a lot of memos that got released in the last couple of days and I think we are all digesting them still.

I think what bothered a lot of people, including me, about the original way that the memos were framed is it seemed to be worrying as much about potential criminal liability as what should be the standards that we choose to govern ourselves by or that we’re committed to govern ourselves by, by international law, i.e., the relevant question is not simply is there a felony that attaches to conduct but rather what should we do, which is why I took some comfort today from the president reiterating again in the most imperative terms that the standard has to be humane conduct.

RAY SUAREZ: In the written communications, do you have that same reassurance? Do you think the government came down in the right place?

RUTH WEDGWOOD: The office of legal counsel has always had a function that is much like a court because there are questions that the executive branch has to address that may never get to court.

So OLC, which is an entirely obscure agency in justice, has always been seen as quite dispassionate or at one step removed from the fray, not operational.

So I suppose my first critique is that they should have apprised the president more thoroughly of the differences, of the view that others were likely to take.

One can propose an idiosyncratic view, a dumbed down view of torture that is only organ failure, but if 97 percent of the world does not agree with you or 99, you should apprise the president of that so he can make an informed judgment about how he will fulfill the American duty to be humane.

RAY SUAREZ: There was still a lot of conditional declarations, weren’t there, that laid out a case and then said but, on the other hand, here’s this case, where conventions may not apply, where the detainees are not like ordinary POW’s, that still reserve the right to use the harshest physical treatment?

RUTH WEDGWOOD: There are a lot of different both treaties and standards of customary law that can apply here. Most of the law of armed conflict is not written down – it’s customary law — but it is still real law.

One of the arguments I did not like in the early January memo is the claim that because customary law may not be part of domestic law, that therefore it is not worth considering. It is still international law.

Other countries have the right of so-called diplomatic protection of their nationals and how they’re treated. So we have to be mindful surely of international standards, whether or not Congress has translated them into domestic law.

RAY SUAREZ: Eugene Fidell, though the administration has rejected many of the early legal opinions, didn’t they, at the same time reserve for themselves the ability to in the final analysis to use harsh physical measures that Geneva Conventions might consider torture if they feel it’s necessary?

EUGENE FIDELL: That’s exactly right. That’s one of the things that’s very disturbing. What you get if you read all of the memos, you come away with a sense that all options remain open; that one of the objectives being served is to effectively immunize U.S. personnel against prosecution for misconduct. This is one of the things that’s most disturbing. Can I give you an illustration?


EUGENE FIDELL: There is a legal memorandum that was prepared by the judge staff advocate for the U.S. Southern command that says this: regarding the uniform code of military justice, the proposal to grab, poke in the chest, push lightly, and place a wet towel or hood over the detainee’s head would constitute a per se violation of the assault statute, military statue.

Threatening a detainee with death may also constitute a violation of that statute or the statute on communicating a threat — “it would be advisable to have permission or immunity in advance from the convening authority,” the military commander, “for military members utilizing these methods.”

What this is is a road map for permitting, condoning criminal conduct. And to see this in a legal memorandum, I have to say, I almost fell out of my chair when I read that.

RAY SUAREZ: Ruth Wedgwood?

RUTH WEDGWOOD: Well, I think some of these have a certain macabre quality. I do think that the centerpiece of attention ultimately after they rescind the memos because it is unprecedented act that the administration took yesterday of rescinding an office of legal counsel memo – to my knowledge, it has never happened before.

They have promised to review them all, vis-à-vis interrogation standards. But I think the important question going forward is to look at what is acceptable and not acceptable given our values, given our law, given what we want to be seen as in the world in interrogation methods.

There are people involved in this process who I think are moral human beings. They intend to be. They face a difficult situation where it seems to have been case in the fall of 2002.

They thought there was an intelligence spike and they worry that the two alleged al-Qaida guys at Guantanamo might be the key to preventing those attack. So one can’t deny that there are exquisite moral dilemmas here but I think the key is to resolve them in a way that we are proud of.

RAY SUAREZ: Well, I don’t want to get into how many angels can dance on the head of a pin kind of arguments but I do want to understand the mechanics. You talk about rescinding the memos — does that mean the administration says, by doing so that it rejects all the reasonings, or is there kind of a laundry list, things that they may think are still true in there like powers that in here in the commander and chief — the ability to decide whether prisoners are covered by the Geneva Conventions or not — that they still may find valid although they reject the overall conclusion of the memo.

RUTH WEDGWOOD: Well, that they have been rescinded subject to rewriting and reconsideration and promised that all issues be reconsidered.

If I had to be a book maker, I would guess that one that is likeliest to disappear is the claim that the president has an absolute power that can never be touched by Congress, that even if Congress passed the statute, that they use the “P” word, the president nor his employees may do the following kinds of acts.

The claim that he was immune from that statute, that Congress didn’t have the power to reach that act, even though Congress’s power under Article 1 of the Constitution gives them the right to prescribe rules for the governance of the armed forces. That was an audacious claim. It’s not part of this necessary conversation. And I think some things like that will disappear.

RAY SUAREZ: Is it unusual for you as a lawyer to be able to see the evolution of a policy debate in documents like this?

EUGENE FIDELL: It’s very unusual. Internal government legal memoranda are typically not made public.

On the other hand, in this case, we have a number of effectively opinions of the attorney general and I remember when the whole question of prisoner of war status for Taliban and al-Qaida came up, thinking, gee, I bet there is an opinion of the attorney general floating out there. It never came out or never came out until over two years later.

My personal view, Ray, is that on matters that so close to the nation’s interest, every possible document that can be made public ought to be made public.

Some of this is not going to make much sense to laypersons but it’s important that lawyers in our society, the lawmakers in our society, the legal academy, be able to bring their critical skills to bear. You can’t do that if you don’t have the hard copy.

I think there is an issue, it’s not just the question of moving forward in terms of how particular policies of interrogation play out, as well by the way as who should be punished for what here because there are cases, as we all know, pending in the pipeline for Abu Ghraib.

But it also has to do with policy towards transparency and the government’s legal apparatus. We can’t allow every bit of legal advice that every official decision maker, including the chief executive receives to become, you know, public the next day necessarily.

But I certainly think that policy on that question of transparency has to be revisited. Incidentally, there is a similar question in the UK, the United Kingdom , where the British government has resisted making public some legal advice received from Lord Goldsmith, the attorney general there.

RAY SUAREZ: Well, much of it is out but by common consent, not all of it. Do you think all of it needs to be released, professor?

RUTH WEDGWOOD: Well, the argument you hear on the other side is if you tell al-Qaida or whoever that exactly what they should expect, even within certainly the boundaries of humaneness, it is easier for them to train against the techniques.

So I think what happened in the last day or two is really quite an extraordinary event in the sense that administration understands that after Abu Ghraib, people are so troubled, they’re troubled.

They want to know where it came from, that you have to have a transparency that really is probably unprecedented.

I do think and here I surely agree with Gene, is that the on issues of this gravity, you want this kind of discussion to be one that’s taken with more advice, perhaps, than one had in the very small inside loop.

There are checks and balances in the government. It’s wonderful to see how uniform guys, even with careers in front of them, are duty bound and not afraid to speak their mind and Secretary Rumsfeld reconsidered things when the JAGS, the Judge Advocates General complained. That’s a healthy check and balances.

The Congress is going to want to be involved in this now. I think it is going to be a much broader conversation and frankly after Abu Ghraib, which even DOD I think wonders how it happened. It is probably inevitable.

RAY SUAREZ: Thank you both.

EUGENE FIDELL: Thank you, Ray.