A newly leaked memo has put a new focus on President Bush's input intomilitary interrogation methods, write Mike Allen and Dana Priest.
The disclosure that the US Justice Department advised the White House in 2002 that torture might be legally defensible against al-Qaeda terrorist suspects has focused new attention on the role President Bush played in setting rules for interrogations in the war on terrorism.
The White House press secretary, Scott McClellan, said on Tuesday that "the President set the broad guidelines" for interrogations but was not involved in approving the specific techniques used by the CIA. "Those would not be decisions that are made at the White House," he said.
The White House counsel, Alberto Gonzales, said in a May 21st interview with the Washington Post: "Any time a discussion came up about interrogations with the President . . . the directive was, 'Make sure it is lawful. Make sure it meets all of our obligations under the constitution, US federal statutes and applicable treaties.'"
An August 1st, 2002, memorandum from the Justice Department's Office of Legal Counsel - obtained by the Washington Post - advised the White House that torturing al-Qaeda terrorists abroad "may be justified" and that international laws against torture "may be unconstitutional if applied to interrogation" conducted against suspected terrorists. The memo also sets the bar extremely high in defining torture.
The Attorney General, John Ashcroft, had refused senators' requests to make the memo, which is not classified, public and would not discuss any possible involvement of the President.
The 50-page Justice Department memo on the degree of pain and suffering legally permitted during enemy interrogations said inflicting physical or psychological pain might be justified in the war on terrorism "to prevent further attacks on the United States by the al-Qaeda terrorist network".
It added that "necessity and self-defence could provide justifications that would eliminate any criminal liability".
The Bush administration has said that, the discussion in the memo notwithstanding, al-Qaeda and Taliban detainees have been treated in accordance with international conventions prohibiting torture. Aberrations such as those at Abu Ghraib prison in Iraq were the subject of criminal charges. The 2002 memo named seven techniques that courts have considered torture, including severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, sexual assault, and forcing a prisoner to watch the torture of another.
"While we cannot say with certainty that acts falling short of these seven would not constitute torture," the memo advised, ". . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law."
"For purely mental pain or suffering to amount to torture," the memo said, "it must result in significant psychological harm of significant duration, e.g., lasting for months or even years."
Examples include the development of mental disorders, drug-induced dementia, "post-traumatic stress disorder which can last months or even years, or even chronic depression".
Of mental torture, however, an interrogator could show he acted in good faith by "taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience" to show he did not intend to cause severe mental pain.
In the Justice Department's view, which differs from the broader US Army view, physical torture "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 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; and food deprivation. Under mental torture, the army prohibits mock executions, sleep deprivation and chemically induced psychosis.
A former senior administration official involved in discussions about CIA interrogation techniques told the Washington Post that Mr Bush's aides knew he wanted them to take an aggressive approach.
"He felt very keenly that his primary responsibility was to do everything within his power to keep the country safe, and he was not concerned with appearances or politics or hiding behind lower-level officials," he said. "That is not to say he was ready to authorise stuff that would be contrary to law. The whole reason for having the careful legal reviews that went on was to ensure he was not doing that."
The August 2002 memorandum was written in response to a CIA request for legal guidance in the months after September 11th, 2001, as agency operatives began to detain and interrogate key al-Qaeda leaders. The fact that the memorandum was signed by Jay S. Bybee, head of the Office of Legal Counsel, and is 50 pages long indicates it was treated as a significant matter.
A former senior administration official said the CIA "was prepared to get more aggressive and relearn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the President could confer on them."
Critics familiar with the 2002 memorandum and another, similar legal opinion given by the Defence Department general counsel's office in March 2003, assert that government lawyers were trying to find a legal justification for actions that are clearly illegal under US and international law.
"This is painful, incorrect analysis," said Scott Norton, chairman of the international law committee of the New York City Bar Association, which has done an extensive report on Pentagon detentions and interrogations. "A lawyer is permitted to craft all sorts of wily arguments about why a statute doesn't apply" to a defendant, he said. "But a lawyer cannot advocate committing a criminal act prospectively."
The 2002 memo from the Justice Department concluded that laws outlawing torture did not bind Mr Bush because of his constitutional authority to conduct a military campaign. "As commander in chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said the memo.
Critics say this misstates the law and that key legal decisions were ignored, such as a 1952 US Supreme Court decision which found that the President, even in wartime, must abide by established US laws.
- (LA Times-Washington Post Service)