Bush team and the limits on torture

That may be a bottom-line lesson of recent disclosures of American memorandums arguing that torture of terrorist suspects might be legally defensible in the war against terror.

MEMOS: At a hearing Tuesday, John Ashcroft said the memos were advice - not directives. DENNIS COOK/AP

Related stories 06/10/04 What went wrong at Abu Ghraib 06/04/04 Abu Ghraib holds mirror to Arabs 06/02/04 Zero-tolerance on torture: How hard is that? 05/27/04 How interrogation tactics have changed

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Whether the memos and their reasoning created a climate that led inevitably to the abuses at Iraq's Abu Ghraib prison remains unclear, say some experts. Attitudes up and down the chain of command that ended at the infamous Iraqi prison have yet to be fully investigated.

But at the very least the torture memos appear to have delved into previously unexplored legal and moral territory - particularly in their argument that President Bush's role as commander-in-chief allowed him to order virtually any action he felt necessary to defend the nation.

"The premise that in a time of necessity the president could disregard [torture conventions] is definitely a more aggressive approach," says legal expert Paul Rosenzweig of the Heritage Foundation in Washington.

In recent days press reports have detailed a series of confidential legal memorandums written by both the Justice Department and the Defense Department that provide legal arguments to support assertions that the Geneva Convention and other antitorture covenants don't apply to suspected terrorist detainees.

The memos use narrow reasoning to argue that certain actions that lay people might consider torture are in fact permissible. For example, one memo, dated March 6, 2003, reportedly says that if an interrogator's objective is not to cause severe pain, but to gain information, then their actions are legal - whether they cause severe pain or not.

An August 2002 memo obtained by The Washington Post detailed what might be called the blanket presidential exemption. Torture laws would not bind the president, argues the brief, because he is charged above all with protecting the nation.

"As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," the memo reportedly says.

The memos' reasoning would probably have been controversial under almost any circumstances. In the context of the abuses at Abu Ghraib, the documents are more than controversial - they are explosive.

To administration critics they prove nothing less than that the prison torture was approved at the top levels of the US government. "We now know that at the highest levels of the Pentagon, there was a shocking interest in using torture and a misguided attempt to evade the criminal consequences of doing so," said Kenneth Roth, executive director of Human Rights Watch, in a statement. "If anyone still thinks the abuses at Abu Ghraib were only dreamed up by a handful of privates and sergeants [these memos] should put that myth to rest."

At a contentious hearing of the Senate Judiciary Committee on Tuesday, Democrats complained that the memos created an atmosphere that led to the use of military dogs on prisoners, and other abuses.

An uncomfortable Attorney General Ashcroft responded that the memos were simply legal opinions offered as advice to higher officials who were deciding on policy. No directive ever made put them in force, he said.

The administration rejects torture, he said. President Bush has issued no order that would violate either international agreements that prevent torture or US laws regarding the practice, according to Mr. Ashcroft. He added that the administration is pursuing legal action against the wrong-doers of Abu Ghraib.

It's possible that more detail regarding who in the administration knew what about Abu Ghraib, and when, will surface, providing a fuller picture of the responsibility of the chain of command. For instance, the Los Angeles Times has reported that Defense Secretary Donald Rumsfeld ordered military intelligence to "take the gloves off" when interrogating American Taliban recruit John Walker Lindh.

What happened at Abu Ghraib was wrong by almost anybody's standards. But some aspects of the memorandums in question reflect genuine legal ambiguity, say legal experts.

While some brutal actions are clearly torture, others are open to interpretation. Is it torture to trick someone, for instance? To make them squat in a difficult position? In a world where terrorists might get access to nuclear weapons, permissible interrogation may be partially defined by the stakes involved - as legal scholar Alan Dershowitz has argued in a book about the potential necessity of torture in the post-9/11 world.

That said, under many circumstances torture is ineffective. And saying that a president is free to order whatever methods of questioning he wants clearly crosses a dangerous line. "Going down that road as a matter of official policy ... is in my own personal view wrong," says Paul Rosenzweig. "We lose the moral high ground."