Redefining Torture

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ROUGH JUSTICE: A fighter from the Afghan war is hauled to an interrogation session in February 2002

From the moment that photos documenting prisoner abuse in Iraq came to light seven weeks ago, the Bush Administration has stuck to the claim that the crimes were the vile acts of a few bad soldiers. But the effort to blame a few individuals has faltered as evidence has mounted of abuse in U.S. detention centers from Cuba to Afghanistan to Iraq. Last week the scandal seemed to drift ever closer to implicating policymakers at the highest levels of the U.S. war council.

A series of leaked legal memos has revealed that since late 2001 the Administration has been quietly but fundamentally reshaping America's stance on torture. Contradicting 50 years of policy governing the treatment of detainees captured during conflict, the memos meticulously list all the laws against torture—then offer methods of evading them. The White House insists that these documents were abstract musings rather than actual policy changes. Nevertheless, they suggest that what happened at Abu Ghraib was not unique but grew out of a climate of ambiguity regarding the treatment and interrogation of prisoners that was created by an Administration determined to do whatever it takes to win the war on terrorism.

The leaked memos alone do not prove that U.S. officials endorsed the use of torture to extract intelligence from detainees. But they have put the Administration on the defensive. Before the Senate Judiciary Committee last week, Attorney General John Ashcroft said, "This Administration opposes torture," but he refused to release an unclassified memo quoted by the Washington Post that seemed to undercut his words. President Bush, asked whether he signed off on any memos that might have loosened the rules of interrogation, said he did not recall seeing any such documents and that "the authorization I issued was that anything we did would conform to U.S. laws" and international treaties.

As early as Sept. 16, 2001, Vice President Dick Cheney, in his first interview after the 9/11 attacks, said, "It's going to be vital for us to use any means at our disposal, basically, to achieve our objective." His declaration met little resistance from a public reeling from 9/11 and willing to support measures needed to prevent another attack. Behind the scenes, government lawyers debated the meaning of "any means at our disposal." Even before the U.S. went into Afghanistan in October 2001, State Department officials and Pentagon military lawyers were incensed that political appointees wanted to exempt captured Taliban and al-Qaeda fighters from the Geneva Conventions. "[Secretary of State Colin] Powell was irate over it," recalls a former State Department official. "He was arguing, 'You can't not follow the Geneva Conventions.'"

After 9/11, a small group of politically appointed lawyers in various departments in the Administration maintained that the conventions, which ban the use of torture on prisoners of war and were signed by the U.S. in 1955, did not apply in a war against terrorists. Top officials agreed. In February 2002, Defense Secretary Donald Rumsfeld said, "The reality is, the set of facts that exist today with al-Qaeda and the Taliban were not necessarily the set of facts that were considered when the Geneva Convention was fashioned."

That month President Bush declared that U.S. soldiers would abide by the spirit of the Geneva Conventions but that neither Taliban nor al-Qaeda captives held in Guantanamo Bay would actually qualify as prisoners of war. The conclusion that al-Qaeda members were not subject to the treaty made sense to many international lawyers.

However, the Taliban did represent a nation state—one that was party to the conventions. Still, the Administration decided that, as John Yoo—a University of California law professor who while a Justice Department attorney wrote one of the primary memos—explained last week in a Los Angeles Times editorial, "the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war."

In mid-2002 government lawyers began crafting even bolder interpretations of anti-torture laws. A Justice Department memo in August advised the CIA that torturing al-Qaeda terrorists abroad "may be justified," the Washington Post reported last week. In December, Rumsfeld approved a list of 17 interrogation tactics for Guantanamo, including sleep deprivation and "stress" positions. Amid concerns that the tactics violated international law, Rumsfeld withdrew the list a month later and asked for a policy review. He issued a new list in April 2003 that is still in use. According to a former Pentagon official who worked on the review, the final list of approved techniques is less harsh than the original recommendations.

After the invasion of Iraq, rules governing interrogation of prisoners broke down as untrained soldiers tried to cope with thousands of detainees and the military blurred distinctions between resistance fighters and terrorists. A senior Pentagon official says the rules for interrogation in Iraq were "more aggressive than the ones at Guantanamo." Stress positions, sleep deprivation, the use of dogs to intimidate detainees—all violations of Geneva—were allowed in Iraq, though they had not been used at Guantanamo. At Abu Ghraib, detainees wore plastic bracelets printed with their ID number and the word terrorist, the Wall Street Journal reported.

As the Administration expanded the definition of terrorist, it contemplated ways to skirt long-observed prohibitions against torture. A March 2003 draft of a Defense Department report, leaked to the Wall Street Journal last week, argued that the President had the authority to approve almost any physical or psychological tactic, including torture, in the name of national security. Though Administration officials say they never authorized the use of torture, some members of Congress are furious that the U.S. even looked for ways to justify it. "It's just incredible," Republican Senator John McCain told Time. "Why doesn't every nation in the world now have a green light to do everything it thinks is necessary to combat a 'terrorist threat'?"

Despite White House attempts to disavow responsibility for the practices employed at Abu Ghraib and elsewhere, the existence of the memos has further eroded U.S. credibility. A Pentagon official tells Time that Rumsfeld is arguing privately to declassify the interrogation techniques because, coming out piecemeal, they are doing a lot of political damage. Some high-ranking military officials, however, say that al-Qaeda already trains its recruits on techniques in the Army field manual, and that if the other ones are made public, the terrorists could use that to their advantage. Things could get even worse. A Republican Senator says charges of manslaughter and rape may soon be brought against U.S. personnel involved in handling detainees in Iraq and Afghanistan.