The Washington Post
By Mike Allen and Dana Priest
9 June 2004
The disclosure that the Justice Department advised the White House in 2002 that the torture of al Qaeda terrorist suspects might be legally defensible has focused new attention on the role President Bush played in setting the rules for interrogations in the war on terrorism.
White House press secretary Scott McClellan said yesterday that Bush set broad guidelines, rather than dealing with specific techniques. "While we will seek to gather intelligence from al Qaeda terrorists who seek to inflict mass harm on the American people, the president expects that we do so in a way that is consistent with our laws," McClellan said.
White House Counsel Alberto R. Gonzales said in a May 21 interview with The Washington Post: "Any time a discussion came up about interrogations with the president . . . the directive was, 'Make sure it is lawful. Make sure it meets all of our obligations under the Constitution, U.S. federal statutes and applicable treaties.' "
"I felt my job was to make sure that the president had all the tools available" Gonzales said. "As part of that, we obviously looked at what can we do in terms of treatment, in terms of interrogations with the enemy that we've captured."
An Aug. 1, 2002, memo from the Justice Department's Office of Legal Counsel said that torturing suspected al Qaeda members abroad "may be justified" and that international laws against torture "may be unconstitutional if applied to interrogation" conducted against suspected terrorists.
The document provided legal guidance for the CIA, which crafted new, more aggressive techniques for its operatives in the field. McClellan called the memo a historic or scholarly review of laws and conventions concerning torture. "The memo was not prepared to provide advice on specific methods or techniques," McClellan said. "It was analytical."
Attorney General John D. Ashcroft yesterday refused senators' requests to make the memo, which is not classified, public and would not discuss any possible involvement of the president.
In the view expressed by the Justice Department memo, which differs from the broader view of the Army, physical torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." For a cruel or inhuman psychological technique to rise to the level of mental torture, the Justice Department argued, the psychological harm must last "months or even years."
A former senior administration official involved in discussions about CIA interrogation techniques said Bush's aides knew them he wanted them to take an aggressive approach.
"He felt very keenly that his primary responsibility was to do everything within his power to keep the country safe, and he was not concerned with appearances or politics or hiding behind lower-level officials," he said. "That is not to say he was ready to authorize stuff that would be contrary to law. The whole reason for having the careful legal reviews that went on was to ensure he was not doing that."
The August memorandum was written in response to a CIA request for legal guidance in the months after Sept. 11, 2001, as agency operatives began to detain and interrogate key al Qaeda leaders. The fact that the memo was signed by Jay S. Bybee, head of the Office Legal Counsel, who has since become a federal judge, and is 50 pages long indicates that the issue was treated as a significant matter.
"Given the topic and length of opinion, it had to get pretty high-level attention," said Beth Nolan, commenting on the process that was in place when she was President Bill Clinton's White House counsel, from 1999 to 2001, and, previously, when she was a lawyer in the Justice Department's Office of Legal Counsel.
Unlike documents signed by deputies in the Office of Legal Counsel, which are generally considered by federal agencies as advice, a memorandum written by the head of the office is considered akin to a legally binding document, said another former Office of Legal Counsel lawyer.
A former senior administration official said the CIA "was prepared to get more aggressive and re-learn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the president could confer on them."
Critics familiar with the August 2002 memo and another, similar legal opinion given by the Defense Department's office of general counsel in March 2003 assert that government lawyers were trying to find a legal justification for actions -- torture or cruel and inhumane acts -- that are clearly illegal under U.S. and international law.
"This is painful, incorrect analysis," said Scott Norton, chairman of the international law committee of the New York City Bar Association, which has produced an extensive report on Pentagon detentions and interrogations. "A lawyer is permitted to craft all sorts of wily arguments about why a statute doesn't apply" to a defendant, he said. "But a lawyer cannot advocate committing a criminal act prospectively."
The August 2002 memo from the Justice Department concluded that laws outlawing torture do not bind Bush because of his constitutional authority to conduct a military campaign. "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," said the memo, obtained by The Washington Post.
Critics say that this misstates the law, and that it ignores key legal decisions, such as the landmark 1952 Supreme Court ruling in Youngstown Steel and Tube Co v. Sawyer, which said that the president, even in wartime, must abide by established U.S. laws.