The Torture Memos: Putting the President Above the Law

Little did the Framers suspect that their Constitution would be twisted by a president to claim powers more appropriate to Roman emperors, Russian czars, King George III.

Some of the attacks on the recently leaked Bush administration legal memoranda about the use of torture and lesser forms of coercion to extract information are a bit facile. It's easy to sit in judgment on those assigned to deal with the threat of catastrophic terrorism. It's much harder to provide morally or legally satisfying answers to questions such as this:

Suppose that U.S. forces capture Abu Musab al-Zarqawi, the terrorist leader suspected of beheading Nicholas Berg. Suppose further that Zarqawi may well know the whereabouts of other American hostages who are soon to be murdered, or even the details of a plot to kill thousands of us with bombs and sarin gas during this summer's political conventions.

What should interrogators be allowed to do to get Zarqawi to talk? Should he be treated as a prisoner of war, who, under the 1949 Geneva Conventions, "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind"? Or should he get the benefit of a broad interpretation of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which some human-rights activists read as banning (for example) detention for more than two weeks in a substandard cell?

And was it just a bunch of immoral Bush administration lawyers who "narrowly redefined" torture "so that techniques that inflict pain and mental suffering could be deemed legal," as The Washington Post implied in a June 9 editorial? No. The definition is in the torture convention itself. It specifies that torture includes only intentional infliction of "severe pain or suffering, whether physical or mental." (Emphasis added.) And it was not the Bush administration but the United States Congress that said—in the 1994 criminal statute implementing the torture convention—that mental pain or suffering could be deemed "severe" only if "prolonged," and only if caused by a few listed techniques. Telling a prisoner that he or his family will be killed unless he talks is not torture, for example, unless the threat is of "imminent" death, under the congressional definition.

Nor is it fair to paint as monsters the officials who have, over top military lawyers' objections, developed legal arguments for interrogation methods more harsh than those listed in military manuals that were written in an era when people like Zarqawi were not the major concern. "The war on terror," says one official who has ruefully watched his reputation being shredded, "may require us to settle on these issues in a different way than we did before." Or may not. That's a decision for policy makers. The main job of administration lawyers is to tell the policy makers the outer limits set by international treaties and criminal statutes that are studded with ambiguities.

(The Pentagon claims that the 24 interrogation methods that Defense Secretary Donald Rumsfeld actually approved in April 2003 for use at Guantanamo Bay stop well short of the legal limits, and that he rejected another 11 or so arguably legal methods.)

For all that, some of the legal analyses concocted by administration lawyers are so extreme and indefensible that it's hard to imagine them coming out of any other recent administration. I read key portions of the recently leaked memos aloud to some top lawyers from the Bush I and Clinton administrations, and they were as shocked as I am.

Most breathtaking is the claim made on pp. 20-21 of a leaked, 56-page section of a March 6, 2003, draft "Working Group Report" prepared for Rumsfeld by Pentagon lawyers and others:

"In light of the president's complete authority over the conduct of war, ... the prohibition against torture [in the 1994 criminal statute] must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority."

In other words, the Constitution empowers the president to give blanket authorization for yanking fingernails, branding prisoners' genitals with red-hot pokers, or holding suspects under water almost to the point of drowning. He may do this despite the unambiguous prohibitions both in a Senate-ratified treaty signed by the Reagan administration and in congressionally adopted implementing legislation that President Clinton signed in 1994. And Bush's (hypothetical) approval of such torture need not even be specific to a particularly important detainee such as Zarqawi; he could, the report implies, authorize torture of all suspected enemy combatants.

I cannot recall any previous president claiming such "complete authority over the conduct of war." This claim is flatly contradicted by the language of the Constitution and by Supreme Court precedents, including the 1952 decision that barred President Truman from seizing the steel mills to help fight the Korean War.

The same draft report (which is posted on The New York Times' Web site) also says (on page 9) that even if an interrogator "knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent [to be guilty of torture].... Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering."

The next sentence notes that juries often infer specific intent from knowledge. But the quoted language at least flirts with the inference that it is never a crime to torture suspects as long as the "objective" is extracting information. And that flouts the torture convention, which explicitly bans torture "for such purposes as obtaining ... information." It also states that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture," and "an order from a superior officer or a public authority may not be invoked as a justification of torture."

Among other far-fetched legal defenses outlined in the Pentagon report is an assertion (on page 31) that if an interrogator "were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States." This language goes far beyond the narrow "necessity" defense that, most experts agree, might properly be raised by an interrogator charged with torturing a prisoner known to have information about a ticking time bomb or an imminent attack.

The Pentagon report, prepared under the watchful eyes of the White House, built on an August 2002 Justice Department memo addressed to White House Counsel Alberto Gonzales, in response to a CIA request for legal protection for interrogators. Both memos, as well as others that have been leaked, reveal an unprecedented focus on how to defend against any war-crimes charges that future prosecutors might bring.

Among the more extreme claims in the August 2002 Justice Department memo are the assertions that to amount to torture, rough treatment of prisoners "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," and that "for purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years."

These warped analyses are not just the work of a few lawyers carried away with clever circumvention of the law. They reflect an attitude deeply entrenched in the Bush White House—including Bush and Dick Cheney as well as Gonzales—that whenever the president invokes national security, he enjoys near-dictatorial powers and is quite literally above the law.

In 2002, Gonzales gave Bush the grandiose advice that he had constitutional authority to launch without a vote of Congress a major war against a nation (Iraq) that had neither attacked the United States nor posed an imminent risk. While Bush ultimately did seek and obtain such a vote, he never acknowledged his constitutional obligation to do so. The president and his lawyers have also claimed the powers to seize suspected "enemy combatants" from the streets of America for indefinite, incommunicado detention and interrogation, without meaningful judicial review or access to lawyers; and to do the same to non-Americans at Guantanamo Bay without answering to any court in the world.

These perversions of the law would allow Bush to seize, imprison, and torture anyone in the world, at any time, for any reason that he associates with national security. Little did the Framers suspect that their Constitution would be twisted by a president to claim powers more appropriate to Roman emperors, Russian czars, and King George III.