Saturday, March 3, 2007


Justice Dept. Memo Says Torture 'May Be Justified'
By Dana PriestWashington Post Staff WriterSunday, June 13, 2004; 6:30 PM
Today is posting a copy of the Aug. 1, 2002, memorandum (PDF) "Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A," from the Justice Department's Office of Legal Counsel for Alberto R. Gonzales, counsel to President Bush.
The memo was the focus of a recent article in The Washington Post.
The memo was written at the request of the CIA. The CIA wanted authority to conduct more aggressive interrogations than were permitted prior to the terrorist attacks of Sept. 11, 2001. The interrogations were of suspected al Qaeda members whom the CIA had apprehended outside the United States. The CIA asked the White House for legal guidance. The White House asked the Justice Department's Office of Legal Counsel for its legal opinion on the standards of conduct under the Convention Against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment.
The Office of Legal Counsel is the federal government's ultimate legal adviser. The most significant and sensitive topics that the federal government considers are often given to the OLC for review. In this case, the memorandum was signed by Jay S. Bybee, the head of the office at the time. Bybee's signature gives the document additional authority, making it akin to a binding legal opinion on government policy on interrogations. Bybee has since become a judge on the 9th U.S. Circuit Court of Appeals.
memorandum, dated March 6, 2003, from a Defense Department working group convened by Defense Secretary Donald H. Rumsfeld to come up with new interrogation guidelines for detainees at Guantanamo Bay, Cuba, incorporated much, but not all, of the legal thinking from the OLC memo. The Wall Street Journal first published the March memo.
At a recent Senate Judiciary Committee hearing, senators asked Attorney General John D. Ashcroft to release both memos. Ashcroft said he would not discuss the contents of the Justice and Pentagon memos or turn them over to the committees. A
transcript of that hearing is also available.
President Bush spoke on the issue of torture Thursday, saying he expected U.S. authorities to abide by the law. He declined to say whether he believes U.S. law prohibits torture. Here is a link to the
of the president's press conference, which included questions and answers on torture.
The Post deleted several lines from the memo that are not germane to the legal arguments being made in it and that are the subject of further reporting by The Post.
© 2004 The Washington Post Company

Government redefining torture
Government tries to narrow definition of torture

By Noah Leavitt, FindLaw columnistSpecial to
Thursday, August 26, 2004 Posted: 3:11 PM EDT (1911 GMT)
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FindLaw) -- Recently, a U.S. government lawyer argued before a panel of the U.S. Court of Appeals for the Seventh Circuit -- including the eminent jurists Richard Posner and Frank Easterbrook -- about what the definition of "torture" should be.
The context was an immigration appeal, Comollari v. Ashcroft, but the resonance of the argument was far broader.
According to the government attorney, it would constitute "torture" if a sniper shoots a person in an artery, causing him to slowly bleed to death. But it would not count as "torture" if the sniper were to hit his target in the head, causing him to die instantly. So a painless assassination would not be "torture" under the government's definition.
The oral argument in Comollari illustrates that the government -- despite denials -- is still engaged in the same enterprise of defining torture as narrowly as possible, regardless of what the law says.
U.S. law already contains a clear definition of "torture," but the U.S. government doesn't seem to be listening to that definition. Congress should make sure it does -- through investigation, resolution, and if necessary, statute.
Currently, the Administration defines torture one way (and far too narrowly), wanting to protect its soldiers from being accused of it. Yet it defines torture another way when it wants to deport someone who seeks asylum on the ground that he reasonably fears being tortured if he is returned to his home country. This is unacceptable and wrong.
The torture memos
Shortly after the Abu Ghraib prison abuse scandal broke, several shocking U.S. government internal memos surfaced.
An August 2002 Department of Justice (DOJ) memo stated that the DOJ advised the White House that torturing suspected terrorists held abroad "may be justified," and that international rules against torture which the U.S. has signed "may be unconstitutional if applied to interrogations" in the terror war.
This memo was reportedly prepared to provide legal defenses for the CIA's harsh methods, in case its agents were prosecuted for violating federal statutes prohibiting torture.
Even more significant was the very narrow definition of "torture" the memo proposed that the President could legally adopt. Under this definition, the only treatment that would count as torture would have to be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
In addition, a March 6, 2003 draft report prepared by Pentagon lawyers also defined torture narrowly -- and also offered arguments as to why U.S. government agents who torture prisoners could not be prosecuted.
The draft report made the near-ridiculous suggestion that if the purpose of the torture was to extract information, not to cause pain, it wasn't really torture: "Even if the defendant [U.S. government agent] knows that severe pain will result from his actions," it suggests, "if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith."
The draft report also went on to claim that, "in light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas."
Apparently when U.S. citizens are deemed "enemy combatants" and imprisoned incommunicado in the United States, they may be able to be tortured here. According to the report, permissible torture recognizes no boundaries it can be carried out overseas or in the United States without regard to any legal prohibitions.
International law on torture
More than 120 prominent lawyers, former government attorneys and legal academics sent a letter to President Bush, expressing the view that the torture memos misinterpret the U.S. Constitution and laws, international treaties and rules of international law. They also expressed the view that the lawyers who had approved and signed the memos have not met their obligation to defend the Constitution and should be reprimanded.
The international legal definition of torture is universally recognized and accepted -- and is very different from what Administration lawyers claim. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment forbids torture under any circumstances and does not allow the prohibition to be derogated even in conditions of national emergency.
The United States are signatories to that convention, and under the Constitution, treaties ratified by the Senate are U.S. law, just like statutes and Supreme Court decisions. So claiming the U.S. has the right to differ from this definition is simply untenable.
Here is the Torture Convention's definition of "torture": "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
This sensible definition reflects our instincts about what torture is, and why it is wrong. It makes clear that torture to extract information is still torture. And it makes clear, too, that torture need not put its victim on the brink of death to be torture.
One would have thought these points were intuitively clear -- until the Administration memos became public. But even if the point wasn't intuitively clear, it was legally clear -- as a matter of a treaty that had become U.S. law.
Narrowing the definition of torture
After Abu Ghraib, many Americans called for Congress to investigate allegations of torture at U.S. bases in the Middle East. They raised concerns that important issues related to the treatment of detainees in the "war on terror" and in Iraq remain unanswered, including why detainees were "rendered" to countries such as Egypt, Syria and Saudi Arabia where torture is commonplace, and what interrogation techniques were approved for detainees in Iraq and Afghanistan.
The Bush administration issued statements claiming that the memos were only advisory; that the U.S. government was not making policy based on these analyses; and that its practices were not torture.
But recent events suggest that's not so. To the contrary, narrowing the definition of "torture" in domestic litigation now appears to be an active part of the U.S. Department of Justice's strategy.
In Comollari v. Ashcroft, Comollari, an immigrant, claimed that if he was returned to Albania, he was at risk of being killed by the political party in power there, due to his own past political activities.
And he pointed out that the Torture Convention forbids expelling a person to a country in which there are "substantial grounds for believing the person would be in danger of being subjected to torture." According to the regulations, "substantial grounds" is if the person is "more likely than not" to be tortured.
During oral argument, the government brought up a side issue that, while it may not relate directly to Comollari, could become extremely relevant in other cases. The government's lawyer argued that the definition of torture does not necessarily cover assassination -- if the assassination is a "painless death."
Judge Easterbrook then summarized the government's position: the Torture Convention does not bar assassinations provided they are done cleanly and lead to instant death.
The government attorney did not deny the summary's accuracy -- and when challenged, repeated that she had "been instructed not to concede this point." Her comment indicates that internal DOJ discussions may be continuing to take place about how to most narrowly define torture.
The fact that the issue was a side issue, but the government dwelt upon it, also suggests it is a subject of ongoing interest to DOJ. As the court noted, the Comollari case itself did not directly raise this question.
Since there was no reason to think Albanian assassins are committed to a "clean kill" philosophy -- the court (in an opinion by Judge Posner) wryly noted -- Comollari's belief he might be assassinated was tantamount, for legal purposes, to a belief he might be tortured. So the issue boiled down to whether he had "substantial grounds" to believe he might be assassinated -- with whatever degree of pain might ensue.
At the same time the court dismissed the government's issue as irrelevant to the case at hand, it also issued a warning of sorts to the government. Judge Posner made clear that even if death itself is physically painless, the anticipation of death by assassination may be a source of mental anguish that rises to a level that satisfies the Torture Convention's definition of torture.
Comollari is indicative of the government's systematic undermining of the Torture Convention. The Torture Convention was the breakthrough international human rights treaty that the United States not only signed and ratified, but also passed implementing legislation, all within a matter of a decade, lightening speed for international law.
According to Chicago immigration lawyer Mirna Adjami, U.S. immigration courts are increasingly reluctant to grant Torture Convention relief.
For instance, in 2000 these administrative courts granted relief in 4.3 percent of 12,432 Torture Convention applications filed; in 2001 relief was granted in only 4.4 percent of cases, even though the number of Torture Convention applications increased 42 percent to 17,660.
The Bush Administration promised it would not play fast and loose with the well-established Torture Convention definition of torture. But its specious position on torture and assassination shows it is still splitting hairs -- and doing so to serve its political agenda.
The legality of the interrogation techniques used by U.S. personnel on detainees at Guantanamo Bay remains unclear. Human Rights Watch has noted that while U.S. policy is that the detainees be treated "humanely," the Department of Defense has never revealed publicly how the detainees actually have been interrogated.
It's time for Congress to step in. As part of its oversight powers, Congress should expand its investigation of the Justice Department -- monitoring how it is defining torture in various cases, and checking to make sure that it is not doing so lawlessly. Congress may also want to consider passing a statute or resolution reaffirming the Torture Convention's definition -- though since the definition is already U.S. law, that should not be necessary.
The issue is one of morality and decency -- and of honor, and compliance with the law. But it also has a pragmatic side. When U.S. soldiers are prisoners of war, will we want a narrow definition of torture to be used? When it is our people who are in the sights of a gun, will we want that definition to exclude assassination?

Priests claim torture; fort says no
By Bill HessHerald/Review
Published on Sunday, May 20, 2007
TUCSON — A pair of priests arrested in November for trespassing on Fort Huachuca are determined to make a court case out of what they contend is torture being taught at the Southern Arizona Army post.“We’re going to put torture on trial,” the Rev. Louis Vitale and the Rev. Steve Kelly told nearly 80 people Friday in the sanctuary of the Southside Presbyterian Church in Tucson.The two believe the post and its intelligence leadership prepare soldiers to become torturers in a misguided attempt to extract information.But Maj. Gen. Barbara Fast, the senior officer on the post and the one who leads the Intelligence Center, denies torture techniques are part of any instruction.The training on the post is “completely consistent with applicable law and policy, to include Sen. (John) McCain’s amendment, the Detainee Treatment Act of 2005,” Fast said.The act, which the Arizona Republican specifically ensured forbade torture, “requires that no person in the custody or under the effective control of the Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the U.S. Army Field Manual on Intelligence Interrogation,” she said.In September, the Army released another field manual specifically geared to human intelligence collector operations, which also directed “that no person in the custody of or under the control of DOD (Department of Defense), regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in U.S. law.”But Kelly said what is happening inside the wire at the detention center in Guantanamo Bay in Cuba, the main detainee complex for suspected terrorists, is taught on the fort and includes using physical and mental torture techniques.Vitale said a female rancher who said she has property that abuts the fort “knows torture is taught.” He did not name the woman, who purportedly spoke at a support meeting for the two priests last week.The two men — Vitale a Franciscan and Kelly a Jesuit — are seeking moral, financial and physical support before, during and after their trial, which is tentatively scheduled in the Tucson federal courthouse on June 6.On Nov. 19, the priests performed an act of civil disobedience by walking on to the fort through the post’s Main Gate area as part of what has become an annual protest of intelligence training. The event is linked to a larger protest that takes place at Fort Benning, Ga., every year. The School of the Americas is located at Fort Benning, and the school has been accused of teaching torture methods to Latin American militaries.The two men, both who have served time in federal lockups for anti-military protests, wanted to deliver a letter to Fast and be allowed to speak to students at the Intelligence Center.As they did in November, they wore priestly garments of their orders on Friday — Vitale in a brown cassock of Franciscan friars and Kelly in black shoes, pants and shirt, with a small white collar at his neck.As they walked across the street on to fort property in November, they were initially approached by a man in civilian clothes who did not identify himself and they continued on, they said.Kelly said as more people from the fort approached at one point, he followed Vitale, who knelt and began to pray.The pair were eventually taken to a facility on post and charged with trespassing. They were released on their own recognizance that day.Vitale and Kelly were the first ever to be arrested for trespassing on the post as part of the annual protest near the Main Gate.As the two men went toward the fort, supporters yelled out encouragement while members of a counterprotest shouted disparaging comments.In 2001, the name of the Fort Benning school was changed to Western Hemisphere Institute for Security Cooperation. However, the priests still call the facility School of the Americas, something they constantly did at the Tucson meeting, because they do not believe there has been any change in the instructional course at the Georgia installation.Appearance seendifferentlyOn Feb. 13, the priests and their supporters once again went to the fort for what the priests said was an arraignment, but post officials said was an initial appearance.Kelly said they were taken to a building where the post courtroom is located and eventually were escorted “down into the basement” into a room with a flickering light.Post spokeswoman Tanja Linton said the initial hearing was “held in a well-lit room in Greely Hall” because there were so many supporters with the priests they could not fit in the courtroom.The hearing was held in a nearby conference room, she added.Vitale’s impression of the building was that it is “the intelligence headquarters for the United States and the spy headquarters for the world,” where every phone call made by a soldier to a family member is monitored.Linton said that description is not true. Greely Hall is primarily used for the headquarters of the Army Network Enterprise Technology Command, along with other organizations, she said. NETCOM is the Army’s premier communications organization.Kelly said many people will not accept the fact the U.S. government, through its military and other agencies, practices torture. And, he said, the conflict of whether torture is right is something American citizens have a hard time grasping.A Christian congregation was polled, “and the majority said torture is acceptable,” Kelly said.The problem is the government is convincing people that in today’s world any way to extract information is allowable, he said.Vitale said his own sister, whom he described as a gentle person who would not hurt a flea, also believes in some cases of excessive force, such as torture, can be used.According to a recent Pentagon report, a large number of soldiers and Marines serving in Iraq also believe torture should be used if it will save the lives of their buddies.Soldier rallying pointBoth men used the death of Alyssa Peterson, an Army specialist from Flagstaff, as a rally point for their anti-torture crusade. Her suicide was the act of a woman who could not bear the responsibility of being an interrogator in Iraq, they said.“The Army put her in a program that taught her how to torture,” Vitale said.According to a March 11 article in The Arizona Daily Sun in Flagstaff, the 27-year-old Peterson killed herself in Tel Afar, Iraq, on Sept. 15, 2003. The article about the soldier’s death was based on an investigative report the newspaper obtained under the Freedom of Information Act.Peterson had a hard time separating being an interrogator from who she was as an individual, according to the article.The soldier apparently had a lot of empathy for Iraqi detainees, so much so she was reprimanded and reassigned after just two days as an interrogator, the newspaper article stated.She reportedly was concerned detainees did not have showers in the cage — where they were held — or other accommodations, did not like being required to be nice to one person and harsh to another and was particularly upset when only three of 43 detainees questioned were found worthy of additional attention, the newspaper said the investigating document stated.One of the sworn statements from a fellow soldier about the number of detainees held said: “She was angry with the fact that we treated them all as guilty initially and only backed off when their innocence was proven,” the Daily Sun reported.In the article, Peterson was described as driven, intelligent and warm. It was noted she had a talent for learning languages. After graduating from Northern Arizona University, she enlisted in the Army and attended the Defense Language Institute, which is in California, where she learned Arabic.Then-Maj. Gen. David H. Petraeus approved the investigation report, the newspaper sated. Today, he is the four-star general in command of all Iraqi operations.The priests contest the reports by the Army that torture is not taught, stating the main reason for Peterson’s self-inflicted death was she had to torture as part of her job, which she learned while attending counterintelligence courses on Fort Huachuca, which is one of the many classes taught on the post.Fast not commanderThe two men also claim that Fast, who when she served in Iraq, commanded the prison at Abu Ghraib, the scene of detainee abuse.The post’s spokeswoman said this is not true. Linton said the general served as the director of intelligence for the Multi-Nation Force-Iraq, Operation Iraqi Freedom.“She did not command Abu Ghraib prison. The facility was commanded by Brig. Gen. Janis Karpinski, and interrogation operations were commanded by Col. Thomas Pappas,” Linton said.Pappas was the commander of an intelligence brigade and has been punished, as has Karpinski, according to news reports.The detainee abuse was committed by military police, medical and intelligence soldiers, most of whom have been punished, news reports state.Fast has been the subject of a number of investigations and has not been charged. When she returned from Iraq, she was supposed to assume command of the Intelligence Center and the fort, but that was delayed a number of months until the last investigation was completed. She will leave command in late June, heading to a lateral assignment at the Training and Doctrine Command at Fort Monroe, Va.Linton said any allegation that Fast supports torture is untrue.“Throughout her 30-plus years in the Army, Maj. Gen. Fast has adhered to all applicable laws and policies and has lived the Army values,” Linton said, adding, “She has never condoned torture.”Torture training groundOn the other hand, the priests are not convinced the post is not the initial torture training ground for the Army.To them, “18-, 19- and 20-year-olds at Fort Huachuca are being turned into torturers.”Vitale and Kelly are among those who do not accept the government’s non-torture claim.The question they are facing will be answered by a federal judge, if they can create a trial within their trial.And, they believe, it is equally important for Arizonans that it has taken awhile for the anti-torture community to recognize that initial training in dehumanizing a soldier starts in the state.“It starts here in your back yard,” Vitale told the audience. “It starts at Fort Huachuca.”For Fast, there is no hiding how training is done on the post.Training on the fort is transparent, she said, emphasizing that under lawful polices — which forbids torture — American and other lives are being saved.“We have hosted several media days for the media to view our training, and also supported numerous individual requests from international, national and regional media. Additionally, several congressional officials have visited and observed our training,” Fast said.