Torture and Presidential Power: Bush Takes a Step Back


Richard Moore

 ³The administration has fought tooth and nail for four
    years to say Common Article 3 does not apply to Al
    Qaeda,² Mr. Lederman said. ³Having lost that fight, I¹m
    afraid they¹re now saying, ŒNever mind, we¹ve been in
    compliance with Article 3 all along.¹ ²

We need to keep in mind here that the US has used torture routinely for decades,
long before 911. The School of the Americas, for example, taught torture to 
South American dictators during the era of the Disappeared. The Bush changes 
were not about introducing torture, but about making it 'legal'.


Original source URL:

July 12, 2006
Terror and Presidential Power: Bush Takes a Step Back

WASHINGTON, July 11 ‹ From the outset, President Bush declared that the battle 
against Al Qaeda would be a war like no other, fought by new rules against new 
enemies not entitled to the old protections afforded to either prisoners of war 
or criminal defendants.

But the White House acknowledgment on Tuesday that a key clause of the Geneva 
Conventions applies to Qaeda detainees, as a recent Supreme Court ruling 
affirmed, is only the latest step in the gradual erosion of the administration¹s
aggressive legal stance.

The administration¹s initial position emerged in 2002 only after a fierce 
internal legal debate, and it has been revised in the face of international 
opinion, Congressional curbs and Supreme Court rulings. Two central ideas of the
war on terror ‹ that the president could fight it exclusively on the basis of 
his constitutional powers and that terrorist suspects had few, if any, rights ‹ 
have been modified repeatedly.

Scholars debated the meaning of a Defense Department memo made public on Tuesday
that declared that the clause in the Geneva Conventions, Common Article 3, 
³applies as a matter of law to the conflict with Al Qaeda.²

Administration officials suggested that the memo only restated what was already 
policy ‹ that detainees must be treated ³humanely.² But what was undeniable was 
that the president¹s executive order of Feb. 7, 2002, declared that Article 3 
did not apply to Al Qaeda or to Taliban detainees, and that the newly released 
memo, written by Deputy Defense Secretary Gordon R. England, said it did.

After the Pentagon released the memo, the White House confirmed that it had 
formally withdrawn part of the 2002 order and accepted that Article 3 now 
applied to Qaeda detainees. That article prohibits ³humiliating and degrading 
treatment² of prisoners and requires trials ³affording all the judicial 
guarantees which are recognized as indispensable by civilized peoples.²

³This is an important course correction, and there are political ramifications 
to it,² said Scott L. Silliman, an expert on the law of war at Duke University. 
Top defense officials ³never really clarified when Geneva applied and when it 
didn¹t,² he said.

Richard H. Kohn, a military historian at the University of North Carolina, said 
the administration might have anticipated that it would have to adjust its 
policies, formed under immense pressure after the Sept. 11, 2001, terrorist 

³They were going to reach as far as possible to prosecute this war, and if they 
were forced to scale back, they¹d scale back,² Mr. Kohn said. ³Almost from the 
beginning, the administration has had to back away and fuzz up the issues.²

If there has been a retreat, it may partly reflect a change in the perceived 
threat from Al Qaeda since the disorienting days after Sept. 11. As months, then
years, passed without a new attack in the United States, the toughest measures 
seemed steadily less justifiable.

³As time passed, and no more buildings were blowing up, it was no longer an 
emergency, and the rules had to be renegotiated,² said Dennis E. Showalter, a 
professor of history at Colorado College.

In retrospect, all the contradictions that have emerged in the last four years 
were present in embryo in the 2002 presidential order.

The order began by noting that ³our recent extensive discussions² had shown that
deciding how Geneva rules would apply to Qaeda prisoners ³involves complex legal
questions.² It said that the conventions¹ protections did not apply to terror 
suspects, but also that ³our values as a nation² nonetheless ³call for us to 
treat detainees humanely, including those who are not legally entitled to such 

In 2003, the administration decided that Article 3 would be applied to all 
prisoners captured in Iraq ‹ even non-Iraqi members of Al Qaeda. But the May 
2004 revelations of abuse of prisoners at Abu Ghraib showed that the policy had 
not always been followed, and in response, the Defense Department repeatedly 
whittled down the list of approved interrogation techniques.

In 2004, the Justice Department reversed course as well, formally withdrawing a 
2002 opinion asserting that nothing short of treatment resulting in ³organ 
failure² was banned as torture.

In late 2005, the administration was forced to accept legislation proposed by 
Senator John McCain, Republican of Arizona, to ban ³cruel, inhuman or degrading 
treatment² of prisoners held by the United States anywhere in the world.

In the meantime, the Supreme Court was knocking down some of the 
administration¹s key assertions of presidential power in the battle against 

In Rasul v. Bush in 2004, the court ruled that American courts had the authority
to decide whether foreign terror suspects held at Guantánamo Bay, Cuba, had been
rightfully detained. And on June 29, in Hamdan v. Rumsfeld, the court rejected 
the administration¹s rules for military commissions set up to try Guantánamo 
detainees, saying it had failed to seek Congressional approval and had fallen 
short of the standards set by law and the Geneva Conventions.

It was the Hamdan ruling that prompted Mr. England¹s memo. ³It is my 
understanding,² he wrote, that all current Defense Department rules were already
in compliance with Article 3.

But Mr. England¹s wording suggested that after all the policy adjustment since 
2002, he was not certain everyone was operating from the same playbook: ³I 
request that you promptly review all relevant directives, regulations, policies,
practices and procedures under your purview to ensure that they comply with the 
standard of Common Article 3.²

Mr. England¹s uncertainty was not surprising, Mr. Silliman said. Mixed messages 
over exactly which rules applied where, and which Geneva protections were to be 
honored and which ignored, were at the root of prisoner abuse scandals from 
Guantánamo to Iraq to Afghanistan, he said.

³It¹s clear when you look at Abu Ghraib and everything else that there was a 
tremendous amount of confusion,² Mr. Silliman said.

Even as legal experts parsed Mr. England¹s memo, confusion lingered. The 
American Civil Liberties Union welcomed the memo as ³a first big step² toward 
ending ³four years of lawlessness² on detainee issues. But it also noted that in
testimony Tuesday, other administration officials suggested that Congress simply
adopt as law the proposed military commissions in exactly the form that civil 
libertarians say falls far short of Article 3.

That skepticism was shared by Martin S. Lederman, a former Justice Department 
official now at the Georgetown University law school.

³The administration has fought tooth and nail for four years to say Common 
Article 3 does not apply to Al Qaeda,² Mr. Lederman said. ³Having lost that 
fight, I¹m afraid they¹re now saying, ŒNever mind, we¹ve been in compliance with
Article 3 all along.¹ ²

Copyright 2006 The New York Times Company

Escaping the Matrix website
cyberjournal website  
subscribe cyberjournal list     mailto:•••@••.•••
Posting archives      
  cyberjournal forum  
  Achieving real democracy
  for readers of ETM  
  Community Empowerment
  Blogger made easy