WASHINGTON - 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 US 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 on 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 US law
and international treaties.
"The breadth of
authority in the report is wholly unprecedented," says
Avi Cover, a senior attorney with the US 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," he added.
While it is
unknown whether Bush himself ever saw or approved the
report, it was classified "secret" by Pentagon chief
Donald Rumsfeld on March 6, 2003, the eve of the US
invasion of Iraq, according to the Journal.
full copy of the report is expected to be published on
the Internet soon, according to sources who declined to
say on which website it would appear.
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 US forces in their
anti-terrorism campaign in Afghanistan, Iraq, at the US
naval facility at Guantanamo Bay, 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.
detainees at Guantanamo 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
"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 Guantanamo 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".
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.
defenses are inconsistent, however, with US law and the
United Nations' 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". US army field manuals also say that soldiers
are prohibited from obeying any superior order to
In its report, the working
group took the position that neither the US 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 US law, such as the federal Torture Statute
or the constitutional ban on "cruel and unusual"
"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.
terrifying about this is the argument that the
administration has been making since September 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
"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 Rights
Watch. "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 US
interests," he said.
"Effectively, what you've
got here is a group of government attorneys trying to
justify war crimes," Horton told Inter Press Service.
"It makes a mockery of Haynes' statement about adhering
to the CAT and Bush's assurances that the US would not
torture or subject detainees to cruel or inhumane
"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