US President George W. Bush, as commander-in-chief, is not restricted by US and international laws barring torture, Bush administration lawyers stated in a March 2003 memorandum.
The 56-page memo to US Defense Secretary Donald Rumsfeld cited the president's "complete authority over the conduct of war," overriding international treaties such as a global treaty banning torture, the Geneva Conventions and a US federal law against torture.
"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," stated the memo, obtained by Reuters on Tuesday.
These assertions, along with others made in a 2002 Justice Department memo, drew condemnation by human rights activists who accused the administration of hunting for legal loopholes for using torture.
"It's like saying the Earth is flat. That's the equivalent of what they're doing with saying that the prohibition of torture doesn't apply to the president," said Michael Ratner, president of the Center for Constitutional Rights.
Media reports of the two memos prompted a fierce exchange in a congressional hearing, at which Attorney General John Ashcroft refused to release the documents while Democrats accused the Bush administration of undermining prohibition on use of torture.
The administration says it observes the Geneva Conventions in Iraq and other situations where the treaty applies and that it treats terrorist suspects at Guantanamo Bay and elsewhere in a way consistent with the spirit of the accords.
The March 2003 memo was written by a "working group" of civilian and military lawyers named by the Pentagon's general counsel.
Interrogation techniques
It came to light as the Pentagon reviewed interrogation techniques used on foreign terrorism suspects at the US naval base at Guantanamo Bay, Cuba, amid concerns raised by lawyers within the military and others about interrogation techniques approved by Rumsfeld that deviated from standard practice.
"It may be the case that only successful interrogations can provide the information necessary to prevent the success of covert terrorist attacks upon the United States and its citizens," the memo stated.
"Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield," the memo stated.
The memo labeled as unconstitutional any laws "that seek to prevent the president from gaining the intelligence he believes necessary to prevent attacks upon the United States."
The memo offered numerous explanations for why US officials and military personnel were immune from bans on torture under US and international law. The memo recommended a presidential directive from Bush allowing for exercise of this power by "subordinates," although it remained unknown whether Bush ever signed such a document.
"It shows us that there were senior people in the Bush administration who were seriously contemplating the use of torture, and trying to figure out whether there were any legal loopholes that might allow them to commit criminal acts," said Tom Malinowski, Human Rights Watch's Washington advocacy director.
President's free hand
"They seem to be putting forward a theory that the president in wartime can essentially do what he wants regardless of what the law may say," Malinowski added.
Amnesty International called for a special counsel to investigate "whether administration officials are criminally liable for acts of torture or guilty of war crimes."
Pentagon spokesman Bryan Whitman said Rumsfeld in April 2003 approved 24 "humane" interrogation techniques for use at Guantanamo, four of which required Rumsfeld's personal review before being used. Whitman said 34 techniques were considered by a working group of Defense Department legal and policy experts before Rumsfeld approved the final list.
"None were determined to be tortuous in nature (by the working group). They were all found to be within internationally accepted practice," Whitman said.
(China Daily via agencies, June 9, 2004)
