Posted on 14-6-2004

A Torturer's Charter

Secret documents show that US interrogators are above the law

Richard Norton-Taylor, June 12, 2004, The Guardian, picture shows Donald
Rumsfeld

On the stage of a London theatre on Thursday night, a lawyer held up an
official US document, classified by Donald Rumsfeld as "secret" and "not
for foreign eyes". Considering its contents, the document has attracted
remarkably little attention here since it was leaked this week to the US
media. Its significance was raised by Clive Stafford-Smith, director of
the US-based group Justice in Exile, at the end of a performance of
Guantánamo, the Tricycle Theatre's moving indictment of how the US rounded
up detainees - or "unlawful combatants", as it calls them - and sent them
to the US base in Cuba.

Stafford-Smith is acting for some of the Guantánamo prisoners, challenging
the conditions in which they are being held. The US supreme court is
expected to give its ruling before the end of this month. Rumsfeld's
classified document, drawn up by US government lawyers, bears directly on
the case. It argues that American interrogators can ignore US domestic law
banning torture, because it would restrict the president's powers in his
"war on terror".

The document, drawn up last year, says that "criminal statutes are not
read as infringing on the president's ultimate authority" over "the
conduct of war". It adds: "In order to respect the president's inherent
constitutional authority to manage a military campaign, [the prohibition
of torture] must be construed as inapplicable to interrogators undertaken
pursuant to his commander-in-chief authority".

Constitutionally, America's founding fathers entrusted the president with
the primary responsibility, and therefore the power, to ensure the
security of the US in situations of "grave and unforeseen emergencies". It
goes on: "Numerous presidents have ordered the capture, detention, and
questioning of enemy combatants during virtually every major conflict in
the nation's history, including recent conflicts in Korea, Vietnam and the
Persian Gulf". And it continues: "Congress can no more interfere with the
president's conduct of the interrogation of enemy combatants than it can
dictate strategy or tactical decisions on the battlefield."

The lengths to which Rumsfeld's lawyers are prepared to go to protect the
freedom of the president's agents and place them above the law are
reflected in other passages.

The document states that US interrogators can use harsh measures as long
as they were not "specifically intended" to inflict "severe mental pain or
suffering". In another passage, it says that even if an interrogator
"knows that severe pain will result from his actions, if causing harm is
not his objective, he lacks the requisite specific intent."

Interrogators can appeal to the defence of "necessity" - in other words,
they can argue that torturing individuals is needed to prevent greater
harm or evil such as threats to the safety of the nation. And the concept
of "self-defence" is given the widest possible interpretation, referring
to the nation rather than any individual.

The document, on the face of it, is a charter allowing the US president to
abuse human rights and ignore domestic as well as international law.
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Stafford-Smith yesterday pointed to what he called its most outrageous
argument - namely, that domestic law does not apply to actions inside the
US. Torture can be committed inside the US.

The Pentagon's lawyers describe Guantánamo Bay as "included within the
definition of the special maritime and territorial jurisdiction of the US
and accordingly is within the US". They add: "Thus, the torture statute
does not apply to the conduct of US personnel" at Guantánamo Bay.

The apparent non sequitur is based on the argument that the statute is
confined to actions outside the US - in other words, that torture is not
banned within the US. Yet this directly contradicts claims made by other
US government lawyers who insist Guantánamo Bay detainees have no rights
under US law. The naval base, they insist, is not US sovereign territory
so the detainees do not have such basic rights as access to a fair trial.

The issue is now before the US supreme court. If the detainees win this
argument, it could lead the way to at least some kind of judicial process,
including the testing of evidence. But whatever Guantánamo Bay's
territorial status, according to the Rumsfeld document, detainees there
and anywhere else can be tortured at will in Bush's global "war" on
terrorism.

"The authorisation I issued was that anything we did would conform to US
laws and would be consistent with international treaty obligations," Bush
said this week. Little comfort there.

· Richard Norton-Taylor is the Guardian's security affairs editor