White House put itself above the law

Staff Sgt. Camilo Mejia is sitting in an Army brig at Ft. Sill, Okla., because he rejected the torture and brutality carried out by U.S. occupation forces in Iraq. Mejia served eight years in the Army National Guard and eight months in Iraq before refusing to go back to his unit there. Now he is serving a one-year term for desertion. On June 3 Amnesty International “adopted” Mejia as a “prisoner of conscience,” and called for his immediate and unconditional release.

But a world apart, in the nation’s capital, top Bush administration officials had no problem with torture and abuse. In fact, newly leaked memos show, they said the president could authorize almost any kind of physical or psychological coercion, including torture, in the name of the “war on terror.” At the same time they compiled a cascade of legal arguments to block potential criminal prosecution of such actions.

In a series of documents stretching back to 2001, Justice and Defense Department officials and White House lawyers said that the president was not bound by long-established international laws or even U.S. law outlawing torture. Using the arguments presented in these documents, President Bush issued directives that took U.S. handling of detainees outside the bounds of established law and set the stage for what happened at Abu Ghraib.

University of Illinois law professor Francis Boyle called the documents evidence of “a conspiracy by the highest-level officials” to violate the Geneva Conventions of 1949 and the Convention Against Torture. “They knew full well that they were violating the law,” Boyle told the World. “This was simply an attempt to create a legal pretext” for the actions Bush and other top officials had decided on, he said. They were trying to set the stage for what is known as “plausible defense” – avoiding criminal prosecution by saying you were just following your lawyers’ advice, Boyle said.

A newly leaked March 6, 2003, Pentagon report devotes 56 pages to highly legalistic hair-splitting of the definitions of torture, dotted with citations and footnotes, in what amounts to a handbook on how to carry out torture while evading prosecution for war crimes. The report is filled with phrases such as “the defense of necessity could be raised,” or “a defendant could show that he acted in good faith by …”

Citing “the President’s complete authority over the conduct of war,” the report says the 1994 U.S. criminal statute against torture is “inapplicable to interrogations undertaken pursuant to his commander-in-chief authority.” The report directly links the president’s policies to on-the-ground torture practices, and even argues that those caught carrying out torture could claim they were simply following “superior orders.”

Tod Ensign, an attorney who is director of Citizen Soldier, which is supporting Mejia, said that argument was specifically rejected by the Nuremberg tribunal, which tried Nazi war criminals. “Nuremberg stands for the principle that there are certain basic acts that cannot be defended by the claim that they are part of national policy or come from a higher authority,” Ensign told the World.

An August 2002 Justice Department memo advised the White House that international law did not apply to the war on terror, and justified the use of torture “to prevent further attacks on the United States.” In contradiction to the internationally recognized Geneva Conventions, the DOJ presented a very narrow definition of what constitutes torture, claiming that inflicting moderate or fleeting pain is not necessarily torture. But the Geneva Conventions require that detainees must at all times be humanely treated, and prohibit any form of “physical or mental coercion.” Torture or inhuman treatment of prisoners of war or others detained in war are grave breaches of the Conventions, and are considered war crimes. A New York Times reporter noted the Justice Department’s “complex definitions of torture … seemed devised to allow interrogators to evade being charged with that offense.”

In a Jan. 25, 2002, memo to President Bush, White House counsel Alberto Gonzales said the “war against terrorism is a new kind of war … that renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” Supporting Bush’s directive that the Geneva Conventions do not apply to Al Qaeda and Taliban prisoners, Gonzales said this “substantially reduces” the “threat” that U.S. officials could be prosecuted under the War Crimes Act – a 1996 federal law that carries the death penalty.

Veteran CIA analyst Ray McGovern called the Gonzales memo “a very startling exposition of the new situation … that it’s OK to exempt folks from the law.” The memo essentially outlined a legal case for Bush to defend himself from criminal prosecution, McGovern noted. This suggests that Bush has a “very deep personal stake” in winning four more years in office – to prevent prosecution, McGovern told the World.

The author can be reached at suewebb@pww.org.