The Washington Post
By Susan Schmidt
9 June 2004
Attorney General John D. Ashcroft told Congress yesterday that he would not release a 2002 policy memo on the degree of pain and suffering legally permitted during enemy interrogations, but said he knows of no presidential order that would allow al Qaeda suspects to be tortured by U.S. personnel.
Angry Democrats on the Senate Judiciary Committee called on Ashcroft to provide the document. They said portions that have appeared in news reports suggest the Bush administration is reinterpreting U.S. law and the Geneva Conventions prohibiting torture.
Sen. Dianne Feinstein (D-Calif.) said the memo on interrogation techniques permissible for the CIA to use on suspected al Qaeda operatives "appears to be an effort to redefine torture and narrow prohibitions against it." The document was prepared by the Justice Department's office of legal counsel for the CIA and addressed to White House counsel Alberto R. Gonzales.
The 50-page Justice Department memo said inflicting physical or psychological pain might be justified in the war on terrorism "to prevent further attacks on the United States by the al Qaeda terrorist network." It added that "necessity and self defense could provide justifications that would eliminate any criminal liability."
The Bush administration has said that the discussion in the memo notwithstanding, al Qaeda and Taliban detainees, including those held at Guantanamo Bay, have been treated in accord with international conventions prohibiting torture.
The memo and a second written by Pentagon lawyers surfaced in news reports this week amid the ongoing abuse scandal at Iraq's Abu Ghraib prison. The documents reflect discussions on the legality of softening prohibitions against inflicting pain on al Qaeda suspects abroad, saying the practice may sometimes be justified.
Ashcroft's hard-line approach to the war on terrorism has drawn criticism from civil libertarians. This time, he came under fire during a scheduled oversight hearing on a day that brought news of the memos.
"There is no presidential order immunizing torture," Ashcroft told the Judiciary panel. He cited President Bush's statement that al Qaeda captives should be treated in a manner consistent with the Geneva Conventions, even though the administration chose not to designate detainees as prisoners of war.
Under questioning, Ashcroft said he could not discuss whether the president issued any orders on the interrogation of detainees, but said: "I want to confirm that the president has not directed or ordered any conduct that would violate any one of those enactments of the United States Congress or that would violate the provisions of any of the treaties as they have been entered into by the United States."
Ashcroft said he would not discuss the contents of the Justice and Pentagon memos, and would not turn over the Justice memo to the committee. "I believe it is essential to the operation of the executive branch that the president have the opportunity to get information from the attorney general that is confidential," he said.
Sen. Joseph R. Biden Jr. (D-Del.) and Sen. Richard J. Durbin (D-Ill.) warned Ashcroft that his refusal might place him in contempt of Congress.
"If such a memo existed, would that -- is that good law? . . . Do you think that torture might be justified?" Biden demanded.
Ashcroft responded, "I condemn torture. I don't think it's productive, let alone justified."
Biden told Ashcroft that prohibitions against torture are intended to "protect my son in the military. That's why we have these treaties. So when Americans are captured, they are not tortured. That's the reason, in case anybody forgets it."
Ashcroft said he needed no reminder, because his own son has been on active military duty in the Persian Gulf.
Ashcroft added that although he would not comment on the contents of the memo, "it is not the job of the Justice Department or this administration to define torture."
That, he said, has been done in explicit fashion by Congress in enacting law that bars intentional infliction of "severe physical or mental pain or suffering." Ashcroft said he would not be drawn into a discussion of the legal boundaries of aggressive interrogation.
Sen. Charles E. Schumer (D-N.Y.), who has taken a tough line against terrorism suspects, alluded to the "high dudgeon" of his Democratic colleagues, saying he wanted to "interject a note of balance here.
"We ought to be reasonable about this," he told the crowded committee room. "I think there are very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake."
Bush, Schumer told Ashcroft, "can hardly be blamed for asking you or his White House counsel or the Department of Defense to figure out when it comes to torture, what the law allows." But, Schumer said, the debate and decisions should be public.
Ranking Democrat Patrick Leahy (Vt.) , angry that Ashcroft had not been before the panel in 15 months, released a fusillade of criticism about his handling of the war on terrorism.
"Mr. Attorney General, your statement lists accomplishments of the Department of Justice since 9/11. But you leave out a number of things. For example, of course, the obvious: Osama bin Laden remains at large," Leahy said. He said that Ashcroft's "practices seem to be built on secret detentions and overblown press releases."
But Republicans, particularly committee Chairman Orrin G. Hatch (Utah), lauded the Justice Department's efforts. Ashcroft was unapologetic about his department's efforts to jail or deport suspected terrorist sympathizers.
"We have been criticized for these tough tactics, but we will continue to use every means within the department and its reach and within the Constitution and the statutes to deter, to disrupt, destroy terrorist threats," he said.