Center for American Progress

Experts Respond to Bush Administration’s Legal Angling on Torture

Experts Respond to Bush Administration’s Legal Angling on Torture




Host: Bob Boorstin, senior vice president of national security policy, Center for American Progress

Participants: Mary Derosa, former special assistant legal adviser to the National Security Council (1997-2001), currently senior fellow at Center for Strategic and International Studies

Rear Admiral John Hutson, U.S. Navy (Ret.), former naval judge advocate general (1997-2000), currently dean of Franklin Pierce Law School

Ambassador John Shattuck, former assistant secretary of state for democracy, human rights, and labor (1993-1998), currently chief executive officer of the John F. Kennedy Library Foundation

Sparked by the prisoner abuse scandal, the release by the press of internal Bush administration legal memoranda regarding the treatment of prisoners detained in the war on terrorism has captured the attention of official Washington. The legal analysis in the memoranda touched off a fierce debate within the government about whether to toss aside nearly a century of compliance with international and domestic law, pitting lawyers from the armed services and state department against political appointees in the justice and defense departments. The memos paint an ugly picture of senior administration officials devising intricate legal defenses to protect themselves from potential criminal prosecution and justifications for intentionally inflicting pain and suffering on detainees. The White House has subsequently released fourteen memoranda regarding the conduct of interrogations and the treatment of prisoners, which included two of the memos discussed in this call.

This panel of experts discussed the process by which these memoranda were produced, what the analysis meant for government policy, how this belief permeated the military culture, what effects this will have on U.S. military forces, and the implications for U.S. foreign policy.

BOB BOORSTIN: The documents we will be discussing today include the Justice Department’s Office of Legal Counsel’s (OLC) August 2002 memo, which defines torture in very narrow terms and effectively puts the president and executive branch beyond the reach of domestic law or international treaty; the memo of March 2003 from the Pentagon’s Working Group on Interrogations, based largely on the OLC memo; and, the memo from the White House Counsel Alberto Gonzales.

The primary thing we don’t know at this point – and one of the things that we’re concerned about – is that although the Office of Legal Counsel recommended that the president issue a directive of finding, or some kind of order regarding the interrogation of prisoners, we don’t know if it exists. There are some clues that it does exist, for example, Scott Horton, who has been an advisor to the Pentagon lawyers, former chair of the New York Bar Association, has said that, "the biggest bombs in this case have yet to be dropped," and that there are some extremely damaging documents around, which link senior figures to the abuses. The Center believes we need an independent investigation by a panel of former civil and military judges into the entire affair, frankly.

MARY DEROSA: Let me comment first on the OLC memo was the first one, in August 2002, and that was sent to the White House Counsel Alberto Gonzales. It is reported to have been signed by Jay Bybee, the head of the office at the time, although actually on the document that’s been on the web, I don’t see a signature. It pretty clearly would have come from the head of the office. I’ll only mention this – the role of the OLC is sort of significant. It is a small office in the Justice Department, its purpose is to give legal opinions only when asked and to give a vigorous, honest, legal analysis. Particularly when the memo comes from the head of the office, as it did in this case, their legal advice, or their legal analysis, is authoritative in the executive branch. The president can come out differently, but the departments cannot.

The legal analysis in the two memos – the OLC memo and the later department of defense memo – are pretty much the same and they would really have to be because the department of department would not have been able to take a significantly different legal approach. The analysis first addresses whether criminal statutes against torture applied to, and how they applied to, government employees. They analyzed what constitutes torture — what the interrogation tactics are that constitute torture — under the criminal statutes and in the Convention Against Torture, which was implemented in one of the criminal statutes. And they read that quite narrowly. There’s a lot of very detailed analysis of cases about torture and they define torture quite narrowly.

Second, the memos talk about – and this is legally the most significant – they talk about whether criminal statutes against torture can prohibit the president from ordering these types of interrogation techniques under his commander in chief authority. They read the criminal statute not to apply to the president in ordering interrogation tactics in the current war against al Qaeda. They say it would be unconstitutional to read the statute to constrain the president and that his commander-in-chief authority basically trumps everything. The reasoning is that because interrogation is tied to the conduct of war, and the Congress cannot constrain the president in any way in his conduct of war. It’s a very broad reading of the President’s authority.

The tone of the memos, particularly the OLC memo, is that they very much appear – and it’s striking to people who, like me, have been reading these memos for years – they appear to really be seeking a preordained result, and there’s a tone of straining to give maximum flexibility.

ADM. JOHN HUTSON: Hello, good afternoon. The potential impact on the military is, I think, great, in a number of different ways, both culturally and in terms of treatment directed at us, U.S. military personnel, when we are the captives, rather than the captors. Most directly is the fact that there is no nation on the face of the earth who is as widely and frequently deployed, which is to say, with our people in harm’s way, as the United States. Therefore, there’s no nation on the face of the earth for whom strict compliance with the international conventions and treaties is as important as the people who are running the greatest risk.

think also it has a potential impact on the culture of the military if this attitude were to prevail. As you know, the military is very hierarchical. Attitudes from the top filter down. Lyndie England didn’t have to actually read the memos – and she surely didn’t – but the attitudes that they represent, that falls of out this kind of thinking is largely what got us to the very unfortunate position that we find ourselves in.

And finally, I think it potentially has an impact on some of the courts-martial coming up next week and those that follow.

AMB. JOHN SHATTUCK: I will offer a broader perspective on what this is doing to our foreign policy and international commitments. I’ll start by noting that there have been reports in the Middle East about reforms, particularly in Arab and Islamic countries, the use of the term "human rights" now is something that’s being avoided because it’s seen by many parts of the population to be equated with the use and abuse of prisoners, particularly if it’s something that’s being pushed forward, in terms of the term, that the U.S. might use. And I think U.S. influence and credibility on human rights and international law and international commitment, in general, is sadly, right now, at an all time low, as a result, in large part, of the kind of lawlessness that these memos illustrate.

It’s a paradox of U.S. power at the moment. At the very time we have a grave international threat and we have unprecedented military power to be able to exercise and respond to it, our influence and credibility and respect around the world are rapidly diminishing. It has certainly been diminished by what we’ve seen here. And I think bipartisan support of international law, particularly things like the Geneva Convention and the torture convention over a long period of time, has been forged around the proposition that international law can be used as a way for the U.S. to promote its interests internationally, and certainly in the war on terrorism, that’s very much the case.

The perception that we are not following international law, the reality that these memos are illustrating, most graphically, perhaps, by the memo the White House Counsel Alberto Gonzales issued and sent to President Bush in January 2002, in which he said, the war on terrorism essentially renders, "obsolete or quaint" – those are the words he uses – the Geneva Convention’s restrictions and regulations on the question of enemy prisoners. But, over a very long period of time, military regulations have called for the use of the Geneva Conventions, for the very simple reason, that they protect U.S. troops just as much as they are intended to protect prisoners in a broader setting.

Secretary of State Colin Powell, in a response to the memorandum issued by the White House counsel, just a day later, pointed out a number of the major costs to U.S. foreign policy that ignoring, or pushing aside the Geneva Conventions, would create. As he said, it would reverse a century of U.S. policy and practice. It would "undermine the protections of the rule of law for our troops." It would have an immediate negative reaction with immediate adverse consequences for our conduct of foreign policy. It would diminish public support among critical allies, making military cooperation more difficult to sustain. It would make it difficult to expedite and bring to justice terrorists, and would "promote foreign prosecutors to investigate and prosecute our officials and troops." Sadly, many of these predictions have now come true. As a former secretary of state for democracy, human rights, and labor, I should say that the state department, including in this administration, has regularly issued reports on interrogation abuses by other countries. The bottom line on all this is that many of those abuses in those reports, documented by the state department, are the very types of abuses that have now been documented with respect to the way detainees have been treated by the U.S. I fear that this is all creating a serious deterioration of U.S. credibility and influence in international affairs at the very top. We need this influence and credibility to address the very serious issues of terrorism affecting the world today.

Question: Mary, you said the OLC memo appeared to have a "preordained tone," that was looking for a preordained result. Can you explain that more fully?

Admiral, I think you indicated that what got us to cases like the Lyndie England example, is this top-down thinking. Is it really that simple?

Ambassador, you indicated that those memos actually indicate the lawlessness. Are they really lawlessness?

DEROSA: I’m referring to the OLC memo, in particular, and it reads very narrowly the specific torture statutes and precedents that would apply to torture. So that, for example, it is only mental torture if it requires prolonged mental harm. It does not include in the definition a lot of things that we would think of as torture. It’s a quite narrow reading there, but a very broad reading of the president’s commander-in-chief authority. They interpret the statutes that prohibit torture, to not apply to the president when he is exercising his commander-in-chief authority, arguing that the statutes do not unambiguously apply to that situation. But the torture statute clearly does apply to that situation. It refers to conduct outside of the U.S., under the color of law. There again, they’re reading a statute very narrowly, and then when they get to the defenses that government actors can raise against torture, they read them quite broadly. So, it is the analysis that leads me to conclude they are straining to reach a specific result. The analysis is very restrictive, when it needs to be, to get to maximum flexibility. Very broad, when it needs to be broad. Their conclusion is based on the way they analyzed the law.

ADM. HUTSON: Your very good question boils down to that it is that simple in many respects. I commented earlier that the military is very hierarchical, and while the people at the bottom of that hierarchy may not necessarily touch the people at the top of it, they certainly are influenced by them. If the president says, "Saddam Hussein dead or alive," the secretary (of Defense) quite notably says, "This is a war on terrorism and different rules of war apply," and that the war on Iraq is the war on terror, that is the culture, the atmosphere, that went down that chain of command to those seven rotten apples that we keep referring to.

And what’s missing was that nobody was saying these may be terrorists, they may be evildoers, but they’re still human beings and we’re Americans, and we’ll treat them with the dignity and respect that human beings deserve no matter how bad they are. And I don’t think that was communicated. What was communicated was at best, garbled, and at worst, seemingly an intentional message, that they’re terrorists, they’re beneath contempt, and anything goes. I think that’s the message that Lyndie England and her friends received.

AMB. SHATTUCK: I think what these memos had the effect of doing – and I refer particularly to the Gonzales memo since it’s the one that went directly to the president – is creating a lawless zone for detention and interrogation and I think it’s important to recognize how lawless. The Geneva Conventions, which no doubt constantly need to be updated, nonetheless have basic requirements of due process and consideration of detainees to consider whether they’re prisoners of war, criminal suspects, or perhaps innocent bystanders.

In Vietnam, we provided individualized hearings for detainees, in the Gulf War we did the same. It greatly enhanced our credibility. I think as a result, it’s pretty short-sighted and odd to say that the war on terrorism somehow represents an even greater threat than some of the threats we’ve been through in this country including things like the Cuban Missile Crisis and certainly the Vietnam War and the whole era of nuclear deterrence.

These rules, generally speaking, have been applied bipartisan ways, across the board. And here we have a memo to the president, and I don’t think we have the full story about how it was acted upon, which says that the Geneva Conventions do not apply. This is a different era, and I think that really entered a zone of lawlessness, and as the admiral said, in a very hierarchical institution. It created the climate in which many of these abuses occurred.

Question: It’s clear that the OLC memo was written at the request of the White House. Based on your experience, do you believe it was implemented in an order from the president, and or a finding, and what’s your basis for believing that?

A follow up question is, since torture was so narrowly drawn in these memos that some judges might throw it out of court, do you think these were sought purely for political reasons, so that the White House could say, that we’ve got legal memos justifying our conduct?

DEROSA: The first question’s answer is that it is clear the OLC memo was written at the White House request. The first line of the memo says, which is written to Gonzales, states that "you have asked for our office’s views." In addition to that, a question of this significance, would not have gone to OLC to write an analysis without agreement, at least, from the White House. As I said, the OLC only writes these opinions when asked, and there is often a lot of debate about whether you ask or not. Like when you go to a court — you might not like what you get. That’s sort of the same analysis that you go through when you ask the OLC to give their opinion on something. So, I think it’s pretty clear that the White House did have a hand in requesting this advice.

Is there an order from the president? I don’t know. I know the legal analysis in the memos says that if you want to be covered by the constitutional commander-in-chief authority, if government employees are to be covered, there needs to be a pretty clear direction that the president had ordered this. So, to implement this advice in the way they recommend, there would have to be such a thing. I don’t know if there is. I have no information on that and really not a view.

Were these memos sought for political reasons? That’s a difficult question. I don’t think I would – again, I’m not there – but I think it’s a little different from that. Actors in the government do feel that they need a legal basis to do the things they do, and very often, legal advice is sought not to provide political cover, but to allow government agencies and employees feel that they are acting with legal cover. So, I feel it’s a little more like that.

Question: What are we looking at when we see, for example, the instances at Abu Ghraib; when we look at the information about the ghost detainees and the allegations of all the prisoners abuses at Guantanamo, sentences, laws, a number of prisoners held in Afghanistan, as well as Iraq, that I know about? Are we looking at ad hoc lawlessness? Is this a window into just an aberration, or do we now, as journalists, make the link that what we’re seeing is a pervasive new atmosphere the military, that it is entitled to put aside the Geneva Convention and the ways must be found around them, and that the most important priority is to find the information at all costs? Are we looking at a new climate or a new culture throughout the military?

ADM. HUTSON: Well, I certainly hope that we are not, and what we’re looking at is a complete aberration. Because if we fall down to that depth, if we go so far from the moral high ground that this becomes acceptable and the standard operating procedure, than we really will have lost the war on terrorism, no matter what happens in body count, we will have lost the war. So, I certainly hope that’s not the case. I think that it does require however – this gets back to something we mentioned very early in the conversation about an investigation of some sort, and there are various ways of doing that – but I think that it is absolutely incumbent upon, not the military per se, but the U.S. to investigate this in a manner in which both domestically and internationally, we can be comfortable that one, we have found all the bad stuff there is to find. We have finally got to ground zero. Two, we are able to make the corrections that need to be made, in order to ensure this doesn’t happens again. Because if we don’t do that, it surely will. Perhaps not in this context, maybe not in a prison, but that that kind of lawlessness – that kind of willingness to throw off the rules because we’re in a war against terror – will surely bring us down.

This is the kind of war we will have in the future. This is the new face of the war. War used to be linear. It had a beginning, middle, and an end. It was against a nation state, we all wore uniforms, and somebody was there who could actually surrender. But now, for the foreseeable future in our lifetime, this is the kind of stakes we’re going to be facing and we have to learn how to deal with it. Simply becoming terrorists ourselves is not the answer.

AMB. SHATTUCK: What continues to be disturbing at the moment, unless some policy change occurs, it will really result in the very event that he’s concerned about, is that the Geneva Conventions are continued to be said not to apply to these detainees as a matter of policy. A determination has been made and no change of that determination by the president – he’s not announced that the Geneva Conventions will apply, he’s not made any reference specifically to the torture convention. He simply said the U.S. will follow the law. That, to me, suggests that there may well be a presidential finding that the law doesn’t apply and therefore the president’s commander-in-chief power is the law in this area and international rules are not applicable. That is the very big looming crisis out there and I think particularly from an administration that does not back off of positions it takes, when they are so dangerous to American security, as this position is, that’s why I think we have the crisis that we have. I think it’s imperative that there be an announcement that the U.S. will comply with these international rules, as we have for some decades before. Until that happens, we won’t restore our credibility.

Question: I just want to follow up by asking does that mean, as I say, as a reporter, we should not treat these incidents as being a window onto a new culture? We treat them as aberrations? We should not be saying, for example, that the doctrine of the U.S. military is now operating under a new set of rules? These are aberrations?

ADM. HUTSON: I agree with the Ambassador. I think that right now, the administration is in the six or seven rotten apples mode, therefore nothing has changed because these were just people who were just operating on their own, which in my estimation is clearly not the case. Therefore, until the administration says, in a meaningful sort of way, we’re going to comply, these are prisoners of war, with international treaties and customary international law, two centuries of our own law, an ever increasingly sophisticated view against torture over the last millennia – until that happens, I’m not sure you’re wrong about that.




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