A classified Pentagon report, providing a series
of legal arguments apparently intended to justify abuses and torture against
detainees, appears to undermine public assurances by senior U.S. officials,
including President George W. Bush, that the military would never resort to
such practices in the "war on terrorism."
Short excerpts of the report, which was drafted by Defense Department lawyers,
were published in the Wall Street Journal Monday. The text asserts, among
other things, that the president, in his position as commander-in-chief, has
virtually unlimited power to wage war, even in violation of U.S. law and international
"The breadth of authority in the report is wholly unprecedented," says Avi
Cover, a senior attorney with the U.S. Law and Security program of Human Rights
First, formerly known as Lawyers Committee for Human Rights.
"Until now, we've used the rhetoric of a president who is 'above the law,'
but this document makes that [assertion] explicit; it's not a metaphor anymore,"
While it is unknown whether Bush himself ever saw or approved the report, it
was classified "secret" by Pentagon chief Donald Rumsfeld on Mar. 6, 2003, the
eve of the U.S. invasion of Iraq, according to the Journal.
A full copy of the report is expected to be published on the Internet Monday
night, according to sources who declined to say on which website it would appear.
The report's partial publication comes amid growing charges that the Pentagon
is engaged in a cover-up of the full extent of abuses committed by U.S. forces
in their anti-terrorism campaign in Afghanistan, Iraq, at the U.S. naval facility
at Guantánamo, Cuba, and elsewhere.
The abuse scandal first came to light in April when news organizations published
photographs of the sexual humiliation and abuse of Iraqi detainees at Abu Ghraib
prison outside Baghdad that took place last October and November. Seven soldiers
have been charged in those cases.
While the Pentagon and the White House have claimed that the abuses were committed
by a "few bad apples," evidence of much more widespread abuse, including severe
beatings and torture, has steadily accumulated over the past month.
Former detainees at Guantánamo Bay and Afghanistan, as well as other prisons
in Iraq, have complained about similar tactics used against them, leading a
number of lawmakers and other observers to conclude that such treatment was
authorized or at the least condoned by authorities at much higher levels.
The Defense Department has itself launched six investigations or reviews into
the treatment of prisoners in Iraq and Afghanistan, but none is designed to
probe the role of senior officers or the civilian leadership in the Pentagon
or relevant policies that they may have developed.
At the same time, lawmakers from the governing Republican Party have been actively
discouraged from undertaking investigations of their own.
"Rumsfeld has really launched a massive cover-up operation within the Department
of Defense," according to Scott Horton, president of the International League
for Human Rights and an expert on military law with the New York City Bar Association.
"The investigations going on right now have all the hallmarks of a cover-up."
Horton was approached in April 2003 by senior uniformed military attorneys
(Judge Advocates General, or JAGs), who were troubled by detention and interrogation
policies they said were being developed by political appointees at the Pentagon.
"It's quite a reasonable inference to say that this report [the subject of
the Journal articles] is what rattled them," Horton said. "We knew they
were extremely upset about something very much like this."
The report, according to the Journal account, was initiated as a result
of the failure of interrogators at the Guantánamo base, where suspected al-Qaeda
and Taliban members are being held, to obtain information using conventional
techniques. It was drafted by a working group appointed by the Pentagon's general
counsel, William Haynes, who last June assured Congress that the military could
fully abide by the 1984 United Nations Convention Against Torture (CAT).
Much of the text, which reportedly runs more than 100 pages, deals with legal
issues relating to interrogation tactics. But, according to the Journal, at
its core the report asserts that nothing is more important, including the normal
restrictions on torture, than "obtaining intelligence vital to the protection
of untold thousands of American citizens."
The report further cited possible Defenses for the use of torture, including
the "necessity" for such methods to prevent an attack, or "superior orders,"
also known as the Nuremberg Defense that supposedly absolves the responsibility
of subordinates for following orders from others higher up the chain of command.
Both Defenses are inconsistent, however, with U.S. law and the UN's CAT, which
was ratified by the United States in 1994. It 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 for torture,"
and that orders from superiors "may not be invoked as a justification of torture."
U.S. army field manuals also say that soldiers are prohibited from obeying
any superior order to torture someone.
In its report, the working group took the position that neither the U.S. Congress,
the courts, nor international law could interfere with the president's powers
to wage war. That means, according to the report, that the president himself
is not bound by U.S. law, such as the federal Torture Statute or the constitutional
ban on "cruel and unusual" punishment.
"In order to respect the president's inherent constitutional authority to manage
a military campaign ... [the prohibition against torture] must be construed
as inapplicable to interrogations undertaken pursuant to his commander-in-chief
authority," the document stated, adding later that "without a clear statement
otherwise, criminal statutes [against torture or abuse] are not read as infringing
on the president's ultimate authority" to wage war.
"What's most terrifying about this is the argument that the administration
has been making since 9/11 – that the president has unlimited power to do whatever
he deems necessary," said Cover. "It doesn't matter what Congress says, what
the constitution says, or what international law says."
But the report also bolsters the growing belief that easing the rules governing
interrogations was a top-level policy decision that better explains why reports
of abuses are so widespread.
"If anyone still thinks that the only people who dreamt up the idea about torturing
prisoners were just some privates and corporals at Abu Ghraib, this document
should put that myth to rest," said Tom Malinowski, Washington director of Human
"It's not hard to see how these abstract arguments made in Washington led to
appalling and systematic abuses that ended up doing huge damage to U.S. interests,"
"Effectively what you've got here is a group of government attorneys trying
to justify war crimes," Horton told IPS. "It makes a mockery of Haynes's statement
about adhering to the CAT and Bush's assurances that the U.S. would not torture
or subject detainees to cruel or inhumane treatment."
"If we apply the same rules to ourselves as we have advocated in the international
tribunals on Yugoslavia and Rumsfeld [that the civilian leadership is responsible
for war crimes committed by their militaries], then Donald Rumsfeld is in very
(Inter Press Service)