Bush Memo OK'd Torture

The Economist has a probing look at the legal advice given to Bush on the subject of torture. It concludes that the office of legal counsel in the Department of Justice has told Bush that it's OK for Americans to torture people abroad.

"Last week, senators questioned John Ashcroft on this issue, and the attorney-general refused to hand over the memo in question. But in another sign that the administration's power over its subordinates is slipping, somebody leaked the full text to the Washington Post. The details make ugly reading for any friend of America.

The memo, which dates from August 2002, looks at the sections of the legal code (2340-2340A) which implement the UN Convention against Torture. It claims torture can be justified on three grounds. First, it narrows the definition of torture, saying American law 'was intended to proscribe only the most egregious conduct.' It is not controversial to say torture should be defined strictly. The UN convention says the pain inflicted must be 'severe'. And the memo correctly identifies an important legal difference between torture and cruel and inhuman punishment. For instance, the European Court of Human Rights said Britain had used cruel treatment in Northern Ireland - hooding, sleep deprivation and so on - but that these things did not amount to torture.

Even so, the memo goes further than most ordinary opinion would in defining torture as 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.' On the face of it, that means sliding needles under fingernails or holding someone's head under water to the point of drowning would not count as torture under the law.

Constitutionally, its second argument is no less striking. This is that the president can do whatever he wants in war, or, as the memo puts it, “enjoys complete discretion in the exercise of his commander-in-chief authority.” Interrogations, the memo says, are a “core function of the commander-in-chief.” Hence “we will not read a criminal statute as infringing on the president’s ultimate authority in these areas.”

This comes near saying that the president is above the law when acting as commander-in-chief in wartime. No other president has made such a claim. The constitution gives Congress power to “make rules for the government and regulation of the land and naval forces.” This contradicts claims of untrammelled presidential authority. When Harry Truman tried to seize Youngstown Sheet and Tube in 1952 to prevent a steel shortage during the Korean war, the Supreme Court stopped him.

In addition, the memo claims the particular law in question (2340) cannot apply because it offends against presidential power. This law governs the activities of Americans abroad, so it applies almost entirely to soldiers and spies—people under the president’s command. In other words, the memo argues that the law cannot really apply at all. Yet there is a long tradition in the United States against interpreting laws in such a way as to render them meaningless.

The memo’s third argument is that, in rare cases when acts are so egregious that they amount to torture, and do not challenge presidential power, torturers are still able to claim immunity. They could only be prosecuted if it were shown their main intent was to inflict pain. If they intended to extract information (presumably the point for all but sadists), that would be a defence under American law according to the memo. It also says they can use “self defence” to justify actions that might have prevented further attacks on America. International law admits the defence of “necessity” in the case of someone with information about, say, a ticking suicide bomber or imminent threat. But the memo goes far beyond that.

Ruth Wedgwood, a professor of international law at Johns Hopkins University (and often a defender of the Bush administration), points out that the memo defines its task oddly. Instead of looking at “what is the law governing torture?” it asks “what can we do and remain within the law?” As a result, the memo either ignores or glides over American and international laws that ban or limit torture. For instance, America has signed the Geneva conventions, one article of which says combatants in unconventional conflicts are not prisoners of war but “shall in all circumstances be treated humanely”. The memo claims this refers only to civil wars—a highly contentious view. It also ignores customary law banning torture, even though America is using such law against al-Qaeda suspects in its military commissions. And it even ignores the president’s own statement of June 2003: “the United States is committed to the worldwide elimination of torture and we are leading this fight by example.”

Given this eccentricity, it might be argued that these legal controversies do not matter. The memo was just one lawyer’s opinion, not public policy. And it is true that Mr Rumsfeld, who had authorised tougher interrogation methods in Afghanistan and Iraq, later changed his mind. A description of what is now permitted also appeared in the Washington Post last week—and the authorised techniques seem to fall well outside even normal definitions of torture, let alone the narrow ones used in the memo.

The trouble is that this one lawyer worked in the office that provides legal opinion for the whole administration. His views were solicited by someone up the chain of command (it is not known who). They subsequently informed a Pentagon report on interrogations. They were not a one-off. Even if policy did not change, the memo undermines the administration's “rotten apples” defence in Abu Ghraib.

Lastly, Mr Bush’s reaction was not reassuring. Asked about the memo, he said: “the instructions went out to our people to adhere to law. That ought to comfort you.” Now the instructions can be read, it is hard to be comforted. The unease they cause is likely to dog Mr Bush for some time."