Legal experts slam torture policy process

White House rebuffed memo saying Bush could be above law

The White House took an unusual step by releasing a thick stack of documents to defend itself against charges it had authorized the abuse of war prisoners, but a number of experts said the most significant decision may have been the administration’s disavowal of the memo contending the president can claim he is above the law on torture if he says he is defending the country.

The 2-year-old legal analysis said only the most egregious physical abuse constituted torture under the law and concluded that the president and the soldiers he commands were effectively exempt from any anti-torture treaties or criminal statutes.

The memo’s fundamental position has turned into the one issue that experts from both sides of the political spectrum have condemned.

While the White House’s efforts Tuesday were clearly aimed at quelling the mounting anger over reports of prisoner abuse, the repudiation of that lone memo — one administration official called it irrelevant — has enraged some legal experts and refocused attention on the unilateral methods President Bush has chosen to employ in the war on terror.

“What they have done is preposterous,” said Eugene R. Fidell, an expert on military law and president of the National Institute of Military Justice, a Washington think tank. “Calling the memo irrelevant is a pretty lame way of getting out of this. But the reality is that the thinking here was the foundation stone of their policy.

“I can’t remember a more unanimous chorus of lawyers from every part of the political spectrum agreeing on an issue.”

The key 50-page memo was written Aug. 1, 2002, by the Justice Department’s Office of Legal Counsel for Alberto Gonzales, the White House counsel. The criminal law, it stated, “does not apply to the president’s detention and interrogation of enemy combatants pursuant to his commander-in- chief authority.”

The Justice Department’s Office of Legal Counsel is a respected group that resolves important legal disputes within the federal government almost like a court. The group was headed by Jay Bybee, who is now a judge on the Ninth U.S. Circuit Court of Appeals in San Francisco.

On Tuesday, the White House disavowed the memo, and administration officials said it was being rewritten. Bush also insisted, “We do not condone torture.”

Some experts expressed anger at the way the Bush administration abandoned the Justice Department lawyers who wrote the memo, which had been done at the White House’s request. “Never in the history of the U.S. has an opinion issued by the Office of Legal Counsel been disavowed by the client, the White House, in that precipitous a fashion,” said David Rivkin, a former attorney in the office now in private practice and a member of the Federalist Society, an influential conservative legal group.

Rivkin said he opposed the memo’s central argument that the president should not be constrained by the criminal laws against torture. “The memos are very aggressive” on the issue of presidential powers, he said. “I would probably be uncomfortable with the full flavor of it.”

The memo, and a Pentagon legal analysis on torture written March 6, 2003, carefully parse the meaning of U.S. criminal laws as well as the U.N. Convention Against Torture, ratified by the United States in 1994, and they provide few inhibitions.

The memos argue that only techniques that cause excruciating and prolonged pain, and that are intended to cause pain that force detainees to produce intelligence, are prohibited. Some lawyers said that those arguments are not new.

“There was some glossing over the laws and some stretching, but it was within the realm of reason,” said Allen Weiner, a professor at Stanford’s Institute for International Studies and a State Department attorney from 1990 to 2001.

“Realistically, those parts of the memos are not novel, but other parts are shockingly novel,” he added. “The constitutional analysis on the president’s power was the most shocking thing. These are totally new powers. These are very bald-faced and categorical assertions. Federal criminal laws become inapplicable.”

The U.N. Convention Against Torture says 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.”

Rear Adm. John D. Hutson, a retired Navy judge advocate general and now dean of the Franklin Pierce Law Center in Concord, N.H., said the interpretation of the laws on torture was not radical, and neither was a debate on the extent of the president’s powers.

“The question of the president’s constitutional authority goes back to the early days of the republic,” said Hutson. “That is a perfectly legitimate subject to debate. But one of the offensive aspects of this to me is that they used that venerable and honorable issue, that people care greatly about, for a short-term, mean-spirited, ill-advised advantage.

“You have to ask if in the long run does this make sense, does it help the U.S.? From that standpoint this fails miserably.”

Rivkin said that, at the least, the fact that the administration was asking legal experts to examine these issues demonstrates that the Bush administration is living up to its democratic obligations.

“Nobody’s sweeping anything under the rug,” Rivkin said.

Weiner said, though, that the idea that the president was claiming the authority to ignore certain laws or treaties could undermine U.S. ability to get allies to cooperate in the war on terror.

“The broader policy concern is that the U.S. is now on record as basically saying we’re going to freely enter into international arrangements but we’re going to ignore them when it suits us,” said Weiner. “That’s the real danger here. It encourages other countries to do the same thing.

“One of the hard lessons of Iraq has been that our power is not as great as we thought and we do need the international community.”

[Keyword: jay s. bybee]

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