Oui, cela en devient éreintant à la fin : subir ce “ping pong” événementiel où l’on ce dit que ce sera la der des der : on ne nous aura plus avec la rouerie de l’administration bushienne. Mais non, les retrouvailles du D-Day, émouvantes il est vrai, passent pour la façade politiquement correcte des bonnes relations entre ces éminents représentants autours du berceau des valeurs atlantistes: parce que les valeurs communes demeurent entre nous, paraît-il…? Laissez-moi pleurer : Les juristes US estiment que Bush n’est même pas lié par le principe d’interdiction de la torture (articles ci-dessous).
Pourtant, j’y crois à cette renaissance de l’Europe, enfin adulte par sa capacité à tourner la page de ses luttes fatricides. Mais nos élites peuvent-elles assumer le poids de leur responsabilité : représenter les citoyens au travers d’institutions transparentes par un lien direct (no authority without accountability).
L’actuel (non)débat entourant les élections du parlement européen exprime de manière assourdissante le malaise induit par des échafaudages institutionnels (25 scrutins nationaux…) dont les citoyens n’entendent que puic. C’est là pourtant , qu’il faut “porter le fer” si l’on veut éviter les dérives populistes. Mais le traité constitutionnel se fait désirer… Alors, débacle imminente… Nous le saurons bientôt. Mais déjà, on entend gronder les tendances “souverainistes”...
June 8, 2004
Lawyers Decided Bans on Torture Didn’t Bind Bush
By NEIL A. LEWIS and ERIC SCHMITT
ASHINGTON, June 7 - A team of administration lawyers concluded in a March 2003 legal memorandum that President Bush was not bound by either an international treaty prohibiting torture or by a federal antitorture law because he had the authority as commander in chief to approve any technique needed to protect the nation’s security.
The memo, prepared for Defense Secretary Donald H. Rumsfeld, also said that any executive branch officials, including those in the military, could be immune from domestic and international prohibitions against torture for a variety of reasons.
One reason, the lawyers said, would be if military personnel believed that they were acting on orders from superiors “except where the conduct goes so far as to be patently unlawful.”
“In order to respect the president’s inherent constitutional authority to manage a military campaign,” the lawyers wrote in the 56-page confidential memorandum, the prohibition against torture “must be construed as inapplicable to interrogation undertaken pursuant to his commander-in-chief authority.”
Senior Pentagon officials on Monday sought to minimize the significance of the March memo, one of several obtained by The New York Times, as an interim legal analysis that had no effect on revised interrogation procedures that Mr. Rumsfeld approved in April 2003 for the American military prison at Guantánamo Bay, Cuba.
“The April document was about interrogation techniques and procedures,” said Lawrence Di Rita, the Pentagon’s chief spokesman. “It was not a legal analysis.”
Mr. Di Rita said the 24 interrogation procedures permitted at Guantánamo, four of which required Mr. Rumsfeld’s explicit approval, did not constitute torture and were consistent with international treaties.
The March memorandum, which was first reported by The Wall Street Journal on Monday, is the latest internal legal study to be disclosed that shows that after the Sept. 11 terrorist attacks the administration’s lawyers were set to work to find legal arguments to avoid restrictions imposed by international and American law.
A Jan. 22, 2002, memorandum from the Justice Department that provided arguments to keep American officials from being charged with war crimes for the way prisoners were detained and interrogated was used extensively as a basis for the March memorandum on avoiding proscriptions against torture.
The previously disclosed Justice Department memorandum concluded that administration officials were justified in asserting that the Geneva Conventions did not apply to detainees from the Afghanistan war.
Another memorandum obtained by The Times indicates that most of the administration’s top lawyers, with the exception of those at the State Department and the Joint Chiefs of Staff, approved of the Justice Department’s position that the Geneva Conventions did not apply to the war in Afghanistan. In addition, that memorandum, dated Feb. 2, 2002, noted that lawyers for the Central Intelligence Agency had asked for an explicit understanding that the administration’s public pledge to abide by the spirit of the conventions did not apply to its operatives.
The March memo, a copy of which was obtained by The Times, was prepared as part of a review of interrogation techniques by a working group appointed by the Defense Department’s general counsel, William J. Haynes. The group itself was led by the Air Force general counsel, Mary Walker, and included military and civilian lawyers from all branches of the armed services.
The review stemmed from concerns raised by Pentagon lawyers and interrogators at Guantánamo after Mr. Rumsfeld approved a set of harsher interrogation techniques in December 2002 to use on a Saudi detainee, Mohamed al-Kahtani, who was believed to be the planned 20th hijacker in the Sept. 11 terror plot.
Mr. Rumsfeld suspended the harsher techniques, including serving the detainee cold, prepackaged food instead of hot rations and shaving off his facial hair, on Jan. 12, pending the outcome of the working group’s review. Gen. James T. Hill, head of the military’s Southern Command, which oversees Guantánamo, told reporters last Friday that the working group “wanted to do what is humane and what is legal and consistent not only with” the Geneva Conventions, but also “what is right for our soldiers.”
Mr. Di Rita said that the Pentagon officials were focused primarily on the interrogation techniques, and that the legal rationale included in the March memo was mostly prepared by the Justice Department and White House counsel’s office.
The memo showed that not only lawyers from the Defense and Justice departments and the White House approved of the policy but also that David S. Addington, the counsel to Vice President Dick Cheney, also was involved in the deliberations. The State Department lawyer, William H. Taft IV, dissented, warning that such a position would weaken the protections of the Geneva Conventions for American troops.
The March 6 document about torture provides tightly constructed definitions of torture. For example, 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 even though the defendant did not act in good faith,” the report said. “Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his control.”
The adjective “severe,” the report said, “makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the text provides that pain or suffering must be `severe.’ ” The report also advised that if an interrogator “has a good faith belief his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture.”
The report also said that interrogators could justify breaching laws or treaties by invoking the doctrine of necessity. An interrogator using techniques that cause harm might be immune from liability if he “believed at the moment that his act is necessary and designed to avoid greater harm.”
Scott Horton, the former head of the human rights committee of the Association of the Bar of the City of New York, said Monday that he believed that the March memorandum on avoiding responsibility for torture was what caused a delegation of military lawyers to visit him and complain privately about the administration’s confidential legal arguments. That visit, he said, resulted in the association undertaking a study and issuing of a report criticizing the administration. He added that the lawyers who drafted the torture memo in March could face professional sanctions.
Jamie Fellner, the director of United States programs for Human Rights Watch, said Monday, “We believe that this memo shows that at the highest levels of the Pentagon there was an interest in using torture as well as a desire to evade the criminal consequences of doing so.”
The March memorandum also contains a curious section in which the lawyers argued that any torture committed at Guantánamo would not be a violation of the anti-torture statute because the base was under American legal jurisdiction and the statute concerns only torture committed overseas. That view is in direct conflict with the position the administration has taken in the Supreme Court, where it has argued that prisoners at Guantánamo Bay are not entitled to constitutional protections because the base is outside American jurisdiction.
Kate Zernike contributed reporting for this article.
Memo Offered Justification for Use of Torture
Justice Dept. Gave Advice in 2002
By Dana Priest and R. Jeffrey Smith
Washington Post Staff Writers
Tuesday, June 8, 2004; Page A01
In August 2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in President Bush’s war on terrorism, according to a newly obtained memo.
If a government employee were to torture a suspect in captivity, “he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network,” said the memo, from the Justice Department’s office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on “necessity and self-defense could provide justifications that would eliminate any criminal liability” later.
The memo seems to counter the pre-Sept. 11, 2001, assumption that U.S. government personnel would never be permitted to torture captives. It was offered after the CIA began detaining and interrogating suspected al Qaeda leaders in Afghanistan and elsewhere in the wake of the attacks, according to government officials familiar with the document.
The legal reasoning in the 2002 memo, which covered treatment of al Qaeda detainees in CIA custody, was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Department’s detention center at Guantanamo Bay, Cuba. At that time, Defense Secretary Donald H. Rumsfeld had asked the lawyers to examine the logistical, policy and legal issues associated with interrogation techniques.
Bush administration officials say flatly that, despite the discussion of legal issues in the two memos, it has abided by international conventions barring torture, and that detainees at Guantanamo and elsewhere have been treated humanely, except in the cases of abuse at Abu Ghraib prison in Iraq for which seven military police soldiers have been charged.
Still, the 2002 and 2003 memos reflect the Bush administration’s desire to explore the limits on how far it could legally go in aggressively interrogating foreigners suspected of terrorism or of having information that could thwart future attacks.
In the 2002 memo, written for the CIA and addressed to White House Counsel Alberto R. Gonzales, the Justice Department defined torture in a much narrower way, for example, than does the U.S. Army, which has historically carried out most wartime interrogations.
In the Justice Department’s view—contained in a 50-page document signed by Assistant Attorney General Jay S. Bybee and obtained by The Washington Post—inflicting moderate or fleeting pain does not necessarily constitute torture. Torture, the memo says, “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
By contrast, the Army’s Field Manual 34-52, titled “Intelligence Interrogations,” sets more restrictive rules. For example, the Army prohibits pain induced by chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time; and food deprivation. Under mental torture, the Army prohibits mock executions, sleep deprivation and chemically induced psychosis.
Human rights groups expressed dismay at the Justice Department’s legal reasoning yesterday.
“It is by leaps and bounds the worst thing I’ve seen since this whole Abu Ghraib scandal broke,” said Tom Malinowski of Human Rights Watch. “It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.”
But a spokesman for the White House counsel’s office said, “The president directed the military to treat al Qaeda and Taliban humanely and consistent with the Geneva Conventions.”
Mark Corallo, the Justice Department’s chief spokesman, said “the department does not comment on specific legal advice it has provided confidentially within the executive branch.” But he added: “It is the policy of the United States to comply with all U.S. laws in the treatment of detainees—including the Constitution, federal statutes and treaties.” The CIA declined to comment.
The Justice Department’s interpretation for the CIA sought to provide guidance on what sorts of aggressive treatments might not fall within the legal definition of torture.
The 2002 memo, for example, included the interpretation that “it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture.” The memo named seven techniques that courts have considered torture, including severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person.
“While we cannot say with certainty that acts falling short of these seven would not constitute torture,” the memo advised, “. . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.”
“For purely mental pain or suffering to amount to torture,” the memo said, “it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” Examples include the development of mental disorders, drug-induced dementia, “post traumatic stress disorder which can last months or even years, or even chronic depression.”
Of mental torture, however, an interrogator could show he acted in good faith by “taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience” to show he or she did not intend to cause severe mental pain and that the conduct, therefore, “would not amount to the acts prohibited by the statute.”
In 2003, the Defense Department conducted its own review of the limits that govern torture, in consultation with experts at the Justice Department and other agencies. The aim of the March 6, 2003, review, conducted by a working group that included representatives of the military services, the Joint Chiefs of Staff and the intelligence community, was to provide a legal basis for what the group’s report called “exceptional interrogations.”
Much of the reasoning in the group’s report and in the Justice Department’s 2002 memo overlap. The documents, which address treatment of al Qaeda and Taliban detainees, were not written to apply to detainees held in Iraq.
In a draft of the working group’s report, for example, Pentagon lawyers approvingly cited the Justice Department’s 2002 position that domestic and international laws prohibiting torture could be trumped by the president’s wartime authority and any directives he issued.
At the time, the Justice Department’s legal analysis, however, shocked some of the military lawyers who were involved in crafting the new guidelines, said senior defense officials and military lawyers.
“Every flag JAG lodged complaints,” said one senior Pentagon official involved in the process, referring to the judge advocate generals who are military lawyers of each service.
“It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way,” said a senior military attorney. “Once you start telling people it’s okay to break the law, there’s no telling where they might stop.”
A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in the world. But the Pentagon group’s report, prepared under the supervision of General Counsel William J. Haynes II, said that “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 Pentagon group’s report, divulged yesterday by the Wall Street Journal and obtained by The Post, said further that the 1994 law barring torture “does not apply to the conduct of U.S. personnel” at Guantanamo Bay.
It also said the anti-torture law did apply to U.S. military interrogations that occurred outside U.S. “maritime and territorial jurisdiction,” such as in Iraq or Afghanistan. But it said both Congress and the Justice Department would have difficulty enforcing the law if U.S. military personnel could be shown to be acting as a result of presidential orders.
The report then parsed at length the definition of torture under domestic and international law, with an eye toward guiding military personnel about legal defenses.
The Pentagon report uses language very similar to that in the 2002 Justice Department memo written in response to the CIA’s request: “If a government defendant 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 by the al Qaeda terrorist network,” the draft states. “In that case, DOJ [Department of Justice] believes that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
The draft goes on to assert that a soldier’s claim that he was following “superior orders” would be available for those engaged in “exceptional interrogations except where the conduct goes so far as to be patently unlawful.” It asserts, as does the Justice view expressed for the CIA, that the mere infliction of pain and suffering is not unlawful; the pain or suffering must be severe.
A Defense Department spokesman said last night that the March 2003 memo represented “a scholarly effort to define the perimeters of the law” but added: “What is legal and what is put into practice is a different story.” Pentagon officials said the group examined at least 35 interrogation techniques, and Rumsfeld later approved using 24 of them in a classified directive on April 16, 2003, that governed all activities at Guantanamo Bay. The Pentagon has refused to make public the 24 interrogation procedures.
Staff writer Josh White contributed to this report.