Memos on Torture Policy Reveal Official Complicity

As the investigation into the torture and sexual humiliation of Iraqi detainees held at Abu Ghraib and other U.S.-run prisons continues, a series of memos have been disclosed which reveal that Justice Department and White House lawyers had in essence authorized such abuse.

A January 2002 Justice Department memo argues that U.S. officials could not be charged with war crimes for the abuse of prisoners because the Geneva Conventions did not apply to detainees held in the war in Afghanistan. The Justice Department's Office of Legal Counsel wrote a memo in August 2002 which concluded that certain acts may be cruel, inhuman or degrading, but still not produce pain and suffering of the requisite intensity to fall within a ban on torture defined in international treaties and U.S. law. Another memo written in March 2003 by the Department of Defense asserted that as commander-in-chief, President Bush was not bound by any international treaties barring torture or by a U.S. federal anti-torture law. In addition to seven American soldiers charged with abusing detainees, four British troops will now be tried in a military court on allegations that they assaulted Iraqi prisoners and forced them to engage in sexual acts.

As the U.S. prepares for the June 30th symbolic transition to Iraqi sovereignty under a new interim government, violence has surged raising the death toll of American and coalition troops, private contractors and Iraqi police. Between The Lines' Scott Harris spoke with Michael Ratner, president of the Center for Constitutional Rights, who discusses the significance of the Bush administration's memos on torture and summarizes a lawsuit his group has brought against two private security companies accused of torturing Iraqi prisoners in order to secure more Pentagon contracts.

Michael Ratner: These (memos) were really shocking, I mean, just utterly shocking to me. Actually, the first one that was released came out in a Wall Street journal article, Jess Bravin's piece, it was actually one the Center helped get released. It was a March 2003 memo from a working group on interrogations. It sort of summarized a lot of the subsequent memos that have come out. The memos came from the Office of Legal Counsel of the Justice Department, from various branch agencies in the military. These had to do particularly with the president and the prohibition against torture. What was really stunning to people was there were sections of that memo that said the president as commander-in-chief in fighting a war, had the right to ignore the prohibitions against torture that were contained in the torture convention and contained in the United States criminal law. U.S. criminal law specifically forbids torture carried outside the United States and this memo said that the president could ignore that prohibition. The memo went on to say, and to redefine really, what torture meant so that it became so severe that most of the conduct that we've been reading about under this new definition would arguably not come within it. So it was really a double-barreled defense, an attempt really to give the president the authority to ask people to, in my view, torture people that were in Iraq in particular, possibly in Guantanamo as well.

Since that memo came out a few weeks ago, we've had a series of other shoes drop, as it were. Now memos are leaking out of everywhere, which is fantastic. Really, the backup for this, I read the one last night from the office of legal counsel of the Department of Justice, and that should be one of the most serious and impressive pieces of legal writing you get and it sort of hued the same line, that the president with commander-in-chief powers could violate prohibitions against torture. So there's that whole series of memos.

Then there's another series of memos that went from the president's counsel, Alberto Gonzalez, to the president, conceivably, or others. Those came out even a little earlier. What was stunning about the Gonzalez memo, the Gonzalez memo really addressed particularly the people in Guantanamo. And it said you have a right not to apply the (Geneva) Conventions to the people in Guantanamo. Now, what right the president has to decide whether the conventions apply or not, is something I'm not clear on. The conventions by their terms tell who they apply to, that's the first problem. The implication really in the memo is, look, there's a war crimes statute in the United States. There's a criminal statute that prohibits violations of the Geneva Conventions -- what are called "grave breaches," that requires that prisoners be treated humanely, not simply that they can't be tortured, but they be treated humanely. What Gonzalez was saying essentially to the president, it appears, was "Look, if we say that the Geneva Conventions don't apply, then we can argue the war crimes statute doesn't apply, and then no one can prosecute us for what we're doing in Guantanamo." That's essentially what this memo says. You put those two sets of memos together, you have an administration here that has set us back a thousand years, that, when and if we ever get out of this dark cave we're in, it's going to take us a long, long time to repair the damage.

Between The Lines: Michael Ratner, it seems that the Justice Department attorneys as well as those working for the White House, took great pains to make the distinction between inflicting pain on a prisoner and actual "torture." A legalistic detail here? Or how do you describe what they were trying to do?

Michael Ratner: They're trying to find every defense they can for essentially torturing people but not calling it torture. So when a guy sits down, an interrogator, or whoever it is who is doing the abuse or torture, the Justice Department view is that he has to have in his mind the specific intent to cause severe pain. If severe pain results, that's not enough. To read those justifications, that you can treat human beings like this is to lower the dignity really of not just of the torturer, but of all of us.

Between The Lines: Michael Ratner, those who defend the White House and deflect the allegations of torture often talk about scenarios where a ticking time bomb is out someplace and torture has to be employed to get information to save dozens, hundreds or thousands of lives. There is a torture lobby out there, people like Alan Dershowitz, famous attorney who go on a lot of these TV talk shows, and say the times we're living in, the threat of terrorism, sometimes there's a justification for torture. What do you say?

Michael Ratner: The ticking time bomb hypothetical which is always raised, is an occasion that never really occurs and it certainly hasn't occurred yet. The idea that you somehow you pitch your argument on that is nonsensical to me. Secondly, I don't believe you should ever use torture.

I think it demeans the torturer, it demeans our society, it demeans human dignity. And once you open the door to the so-called "one case," you're going to open the door to everyone being tortured. And really that's what's happened. Essentially, they now torture people apparently routinely in Iraq. I find it to be unspeakable that there's people out there in what you call the "torture lobby." It is just unspeakable to me, that the minute the U.S. had a terrorist attack, it immediately sunk really into a primitive age of society when all of these laws were not there, when the hundreds of years we spent building these up. I mean, we're talking about Grand Inquisitors. That's what we're talking about when we say, you can be tortured. So there's a lot of reasons to be against torture. The main one to me, the absolute main one, is we're human beings and we've hopefully learned something in our couple of thousand or five thousand years that we've been trying to establish a just society.

Between The Lines: Michael Ratner, I wondered if you'd talk a little bit about the lawsuit that your organization, the Center for Constitutional Rights has brought against two private security firms working in Iraq, Titan and CACI International. There's allegations that these private contractors abused and tortured Iraqi prisoners in order to secure more Pentagon contracts. Tell us about that.

Michael Ratner: Right, we did bring a lawsuit last week against two of the private contractors and three people who worked for them at various times. It's based on primarily allegations that were in the Tabuga report. In that report, private contractors were named as condoning or being involved in some way in those abuses and we have a number of plaintiffs in that case who were harmed pretty badly, a number of them tortured, electrodes to the tongue, etc. We don't know for sure who did everything to them, we do know that private contractors, that were alleged in the lawsuit, that private contractors were involved in some kinds of abuses in the Iraqi prison and that is one of the reasons that we brought this lawsuit to really bring that out.

Call the Center for Constitutional Rights at (212) 614-6464 or visit their website at http://www.ccr-ny.org.

Michael Ratner is the author of "Guantanamo: What the World Should Know," published by Chelsea Green.

Scott Haris is executive producer of Between The Lines, which can be heard on more than 35 radio stations. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines ( http://www.btlonline.org) for the week ending June 25, 2004. This Between The Lines Q&A was compiled by Anna Manzo and Scott Harris.

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