Ashcroft: Bush Hasn't OK'd Torture

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AP
Attorney General John Ashcroft said Tuesday he was not aware of any order by President Bush that would violate U.S. laws or treaties banning torture of military prisoners captured in Iraq or elsewhere in the war on terrorism.

But he steadfastly refused to comment directly about a policy paper on this issue, or say whether Mr. Bush ever responded to it.

A March 2003 Pentagon memo for Defense Secretary Donald Rumsfeld found that the president could not be bound by laws and treaties against torture — and that U.S. agents following presidential orders might not be liable either.

The Washington Post reported Tuesday that in August 2002, the Justice Department told the White House and CIA that torture of terrorism suspects "may be justified" and that laws against torture may be "unconstitutional: in the war on terror.

The Justice Department lawyers who wrote the 2003 policy paper were not identified by name and were part of a working group writing a policy governing interrogation techniques to be used at the prison for terrorist suspects at the U.S. naval base at Guantanamo Bay, Cuba.

The lawyers' rationale was that the president was not necessarily bound by anti-torture laws or treaties because of his authority as commander-in-chief to protect national security.

"This administration rejects torture," Ashcroft declared under tense questioning by members of the Senate Judiciary Committee.

But, Ashcroft did say, "The Department of Justice will both investigate and prosecute individuals who violate the law. The Torture Act is a law that we include in that violation."

Said Ashcroft: "The president of the United States has not ordered any conduct that would violate the Constitution of the United States, that would violate not one of the laws enacted by the Congress, or that would violate any of the various treaties."

Sen. Joseph Biden asked Ashcroft whether there is any presidential order that "immunizes (from prosecution) interrogators of al Qaeda suspects?"

"The president has issued no such order," Ashcroft replied.

The attorney general said the policy memo on this issue would not be made available to the committee, however. And Ashcroft said that while he respected the constitutional right of Congress to ask questions, "there are certain things that, in the interest of the executive branch operating effectively, that I think it is inappropriate for the attorney general to say."

"Do you think torture might be justified — not a memorandum — just a question to you, attorney general of the United States?" Biden asked.

"I am not going to issue or otherwise discuss hypotheticals. I will leave that to academics," Ashcroft replied.

"John, you sound like you're in the State Department," Biden shot back.

"I condemn torture. … I don't think it's productive, let alone justified," Ashcroft responded.

Biden told Ashcroft "there's a reason why we (Congress) sign those (anti-torture) treaties" and it is to protect U.S. military personnel.

Pentagon spokesman Lawrence Di Rita said Monday that the final set of interrogation methods adopted for use at Guantanamo in April 2003 are humane, legal and useful — and more restrictive than the methods some had proposed.

Di Rita described the paper as a staff legal analysis that was part of an internal administration debate on how to obtain intelligence from al Qaeda operatives in U.S. custody, within the confines of a standard of humane treatment. The intelligence sought was to prevent terrorist attacks, he said.

The paper discusses both domestic law and international treaties governing torture and the treatment of prisoners, and concludes Mr. Bush has vast legal authority for a number of reasons.

Mary Ellen O'Connell, a professor of international law at Ohio State University who has seen the draft paper, called its arguments unconvincing.

"In every case it finds defenses, narrower readings of that statute, or justifications that allow torture in a wide variety of circumstances," she said. "The legal analysis is weak."

Ultimately, the Pentagon adopted a set of 24 interrogation methods it would use at Guantanamo, Di Rita said. The majority are psychological tricks and techniques described in Army field manuals. However, The New York Times has previously reported that some al Qaeda detainees have been deprived of sleep, food and medicine, and at least one has been dunked in water until he thinks he might drown.

In addition to international treaties, United States laws bar torture.

The Third Geneva Convention on treatment of prisoners of war states that "no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever."

The United Nations convention on torture, which the United States has signed, says torture consists of "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 … "

In U.S. law, torture is defined as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."

U.S. law defines "severe mental pain or suffering" as "prolonged mental harm" caused by "the intentional infliction or threatened infliction of severe physical pain or suffering … (or) the threat of imminent death."

Elsewhere, the British government said Tuesday that military police had investigated or were continuing to probe 75 cases of alleged abuse, civilian deaths and injuries in Iraq — more than double the number it previously disclosed.

The Ministry of Defense said of the 75 cases, 30 probes were in progress and 37 had been completed and no further action was being taken. Eight other investigations had been completed and authorities were contemplating whether to press charges.

Of those, one relates to the death of an Iraqi prisoner in custody, and another to a prisoner being injured. The other cases relate to four civilians being killed and two injured during military operations.