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August 7, 2004

130 Jurists Condemn White House Torture Memos

by Jim Lobe

Nearly 130 influential U.S. jurists, including twelve former federal judges and a former director of the Federal Bureau of Investigation (FBI), have signed a statement denouncing Bush administration memoranda regarding the treatment of Iraqi and other detainees and accusing their authors of unprofessional conduct.

The statement, in the form of an open letter sent Wednesday to President George W. Bush, other top administration officials and members of Congress, declares that the memoranda, which were drafted by political appointees in the Pentagon, the Justice Department and the White House, "seek to circumvent long established and universally acknowledged principles of law and common decency."

The signers, who also include eight past presidents of the American Bar Association (ABA) and the heads of several U.S.-based international human rights groups, also call on the administration to release all other memoranda that relate to the detainee treatment and for Congress to compel their production if they are not released

The memoranda "ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law," according to the statement. "The lawyers who approved and signed these memoranda have not met their high obligation to defend the Constitution."

The statement was released on the eve of the annual ABA meeting in Atlanta this weekend. The 400,000-member organization is expected to debate several resolutions condemning the abuses at Abu Ghraib prison in Iraq and call for an independent, bipartisan commission – something which the administration has so far rejected – to investigate how they took place and whether the memoranda contributed to a larger pattern of abuses in the war on terrorism.

"The use of torture and cruel, inhuman or degrading treatment by United States personnel in the interrogation of prisoners captured in the Afghanistan and Iraq conflicts has brought shame on the nation and undermined our standing in the world," according to a 20-page brief that is being submitted to the ABA's House of Delegates in support of the resolutions.

"The American public still has not been adequately informed of the extent to which prisoners have been abused, tortured, or rendered to foreign governments which are known to abuse and torture prisoners," the brief states.

"It is incumbent upon this organization, which makes the rule of law its touchstone, to urge the U.S. government to stop the torture and abuse of detainees, investigate violations of law and prosecute those who committed, authorized or condoned those violations, and assure that detention and interrogation practices adhere faithfully to the Constitution, laws and treaties of the United States and related customary international law."

The administration, which has blamed reported abuses, including those depicted in the infamous photographs of sexual abuse and humiliation at Abu Ghraib prison, on low-ranking soldiers has insisted that the memoranda in question were never transmitted to military commanders in the field, nor did they reflect the government's actual policy. The administration has consistently maintained that it does not condone torture under any circumstances.

But human rights groups and other watchdogs have contended that many of the abuses reported in Afghanistan, Iraq, and at the Guantanamo Bay detention facility have been so consistent that they appear to have been systemic.

"It's not hard to see how these abstract arguments made in Washington," said Tom Malinowski, director of the Washington office of Human Rights Watch, in reference to the administration's memoranda, "led to appalling and systematic abuses that ended up doing huge damage to U.S. interests."

One Pentagon memorandum, for example, asserted that the president in his role as "commander-in-chief" might choose to ignore laws, treaties, or even the Constitution regarding the treatment of prisoners in wartime.

Another Justice Department memo asserts that the president has the authority to approve the infliction of extreme physical distress by redefining "torture" as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Similarly, mental pain and suffering does not amount to torture in the memo-writers' view, unless "it results in significant psychological harm of significant duration, e.g., lasting for months or even years."

Finally, memos by Justice and Defense Department political appointees presented a series of arguments that they said could be used as defenses against U.S. torture statutes and the UN's Convention Against Torture (CAT) that has been ratified by the United States.

According to published reports, most career attorneys in the Justice, Defense and State Departments strongly opposed the positions taken in the memos but were overruled by senior political appointees. Military attorneys and the State Department were especially outspoken in arguing for applying the full range of protections to detainees, including members of the Taliban, under the Geneva Conventions, according to other memoranda that have leaked to the press.

"The most senior lawyers in the Department of Justice, the White House, Department of Defense and the vice president' sought to justify actions that violate the most basic rights of all human beings," according to the jurists' statement.

Among those who have been named in published accounts as responsible for the memos include former Asst. Attorney General Jay Bybee who is now a federal judge; the Pentagon's general counsel, William Haynes II, who has been nominated for a federal judgeship; Undersecretary of Defense for Policy, Douglas Feith; the former head of the Justice Department's Office of Legal Counsel (OLC), Jack Goldsmith; and John Yoo, one of his deputies in the OLC.

Most of the attorneys involved have been associated with The Federalist Society, an association of mainly far-right attorneys who gained top positions in the Bush administration, particularly in the Justice Department.

"The lawyers who prepared and approved these memoranda have failed to meet their professional obligations," according to the statement, which was signed by, among others, former FBI director William Sessions, retired Chief Judge of the U.S. Third Circuit Court of Appeals John J. Gibbons, former U.S. Attorney General Nicholas Katzenbach, and former Circuit Judge of the U.S. Court of Appeals for the District of Columbia, Abner Mikva, among others.

"They have counseled individuals to ignore the law and offered arguments to minimize their exposure to sanction or liability for doing so," the statement added, noting that in several cases, the memoranda ignored well-established precedents, including Supreme Court decisions, that directly contradicted their positions.

Legal experts have been particularly harsh in their criticism of the attorneys in the OLC, which is supposed to provide the Attorney General with opinions that are firmly grounded in accepted law. Goldsmith resigned in June to take a position at Harvard Law School, while Yoo, who has aggressively defended the memos in public and in the editorial pages of the Wall Street Journal, left the administration last year for the University of California's Boalt Hall School of Law in Berkeley and the American Enterprise Institute, a neo-conservative think tank in Washington.

Among the human rights groups whose directors signed the statement were Human Rights First (formerly Lawyers Committee for Human Rights), Human Rights Watch, the International League for Human Rights, Physicians for Human Rights, and the Alliance for Justice.

(One World)

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    Jim Lobe, works as Inter Press Service's correspondent in the Washington, D.C., bureau. He has followed the ups and downs of neo-conservatives since well before their rise in the aftermath of the September 11, 2001 attacks.

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