April 15, 2008 – When the American Civil Liberties Union released the FBI e-mail in December 2004 – after obtaining it through a Freedom of Information Act lawsuit – the White House emphatically denied that any such presidential Executive Order existed, calling the unnamed FBI official who wrote the e-mail “mistaken.”
President Bush and his representatives also have denied repeatedly that the administration condones “torture,” although senior administration officials have acknowledged subjecting “high-value” terror suspects to aggressive interrogation techniques, including the “waterboarding” – or simulated drowning – of three al-Qaeda detainees.
But the emerging public evidence suggests that Bush’s denials about “torture” amount to a semantic argument, with the administration applying a narrow definition that contradicts widely accepted standards contained in international law, including Geneva and other human rights conventions.
The FBI e-mail – dated May 22, 2004 – followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought guidance on whether FBI agents in Iraq were obligated to report the U.S. military’s harsh interrogation of inmates when that treatment violated FBI standards but fit within the guidelines of a presidential Executive Order.
According to the e-mail, Bush’s Executive Order authorized interrogators to use military dogs, “stress positions,” sleep “management,” loud music and “sensory deprivation through the use of hoods, etc.” to extract information from detainees in Iraq.
The FBI e-mail was put into a new light by news reports last week that senior White House officials – including Vice President Dick Cheney and then-National Security Adviser Condoleezza Rice – did meet secretly to discuss specific interrogation methods that could be used against detainees.
“The most senior Bush administration officials repeatedly discussed and approved specific details of exactly how high-value al-Qaeda suspects would be interrogated by the CIA,” ABC News reported, citing unnamed sources.
“The high-level discussions about these ‘enhanced interrogation techniques’ were so detailed, these sources said, some of the interrogation sessions were almost choreographed – down to the number of times CIA agents could use a specific tactic.
“These top advisers signed off on how the CIA would interrogate top al-Qaeda suspects – whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding, sources told ABC News.”
On Friday, President Bush confirmed the report, stating matter-of-factly: “I’m aware our national security team met on this issue. And I approved.”
Reacting to Bush’s comment, the ACLU called on Congress to demand that a special prosecutor be appointed to investigate whether the President and other officials broke federal and international laws, “including the War Crimes Act, the federal Anti-Torture Act, and federal assault laws.”
“No one in the Executive Branch of government can be trusted to fairly investigate or prosecute any crimes since the head of every relevant department, along with the President and Vice President, either knew or participated in the planning and approval of illegal acts,” said Caroline Fredrickson, director of the ACLU’s Washington Legislative Office.
“Congress cannot look the other way; it must demand an independent investigation and independent prosecutor. Congress is duty-bound by the Constitution not only to hold the President, Vice President and all civil officers to account, but it must also send a message to future presidents that it will use its constitutional powers to prevent illegal, and immoral conduct.”
Anthony D. Romero, the ACLU’s executive director, said the fact President Bush admitted he approved of high-level meetings so members of his Cabinet could brainstorm about brutal interrogation methods “confirms our worst fears.”
“We have always known that the CIA’s use of torture was approved from the very top levels of the U.S. government,” Romero said. “It is a very sad day when the President of the United States subverts the Constitution, the rule of law, and American values of justice.”
The May 2004 FBI e-mail stated that the FBI interrogation team in Iraq understood that despite revisions in the Executive Order that occurred after the furor over the Abu Ghraib abuses, the presidential sanctioning of harsh interrogation tactics had not been rescinded.
“I have been told that all interrogation techniques previously authorized by the Executive Order are still on the table but that certain techniques can only be used if very high-level authority is granted,” the author of the FBI e-mail said.
“We have also instructed our personnel not to participate in interrogations by military personnel which might include techniques authorized by Executive Order but beyond the bounds of FBI practices.”
One month after the e-mail was sent to FBI counterterrorism officials in Washington, then-White House counsel Alberto Gonzales held a news conference in an attempt to contain the fallout from the Abu Ghraib scandal.
Gonzales told reporters that the abuses, which included sexual humiliation of Iraqi men, were isolated to some rogue U.S. soldiers who acted on their own and not as result of orders being handed down from high-level officials inside the Bush administration.
“The President has not directed the use of specific interrogation techniques,” Gonzales said on June 22, 2004. “There has been no presidential determination necessity or self-defense that would allow conduct that constitutes torture.
“There has been no presidential determination that circumstances warrant the use of torture to protect the mass security of the United States.”
Prior to the news conference, the White House selectively declassified and released documents to reporters, including one dated Feb. 7, 2002, and signed by President Bush, that cited the Geneva Convention’s rules about humane treatment of prisoners during conflicts.
Describing the contents of the Feb. 7, 2002, memo, Gonzales said, “This is the only formal, written directive from the President regarding treatment of detainees. The President determined that Geneva does not apply with respect to our conflict with al-Qaeda. Geneva applies with respect to our conflict with the Taliban. Neither the Taliban or al Qaeda are entitled to POW protections.”
Gonzales added: “But the President also determined – and this is quoting from the actual document, paragraph 3; this is very important – he said, ‘Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been, and will continue to be, a strong supporter of Geneva and its principles. As a matter of policy, the Armed Forces are to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva’.”
But the FBI e-mail’s reference to an Executive Order describing specific harsh interrogation techniques, allegedly approved by President Bush, appeared to contradict Gonzales’s assertions.
The issue surrounding U.S. interrogation methods and whether they amount to torture resurfaced two weeks ago when the Defense Department released an 81-page document in response to the ACLU’s ongoing FOIA lawsuit.
John Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, drafted the document, dated March 14, 2003. It essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners.
“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network,” Yoo wrote.
“In that case, we believe that he could argue that the Executive Branch’s constitutional authority to protect the nation from attack justified his actions.”
The legal opinion for military interrogators was virtually identical to an earlier memo that Yoo had written in August 2002 for CIA interrogators. Widely called the “Torture Memo,” it provided CIA interrogators with the legal authority to use long-outlawed tactics, such as waterboarding, when interrogating so-called high-level terrorist suspects.
In declaring that the United States does not engage in torture, Bush administration officials appear to be relying on a narrower U.S. definition of torture than that is accepted under international law, such as the 1984 Convention Against Torture that was signed by the Reagan administration in 1988 and ratified by the U.S. Senate in 1994.
“The threshold for torture is lower under international law: acts that do not amount to torture under U.S. law may do so under international law,” wrote Philippe Sands, law professor at University College London, in a column published in the Dec. 9, 2005, edition of The Financial Times.
“Waterboarding – strapping a detainee to a board and dunking him under water so he believes that he might drown – plainly constitutes torture under international law, even if it may not do so under U.S. law. …
“When the U.S. joined the 1984 convention it entered an ‘understanding’ on the definition of torture, to the effect that the international definition was to be read as being consistent with the U.S. definition. The administration relies on the ‘understanding.’
“So, when Ms. Rice says the U.S. does not do torture or render people to countries that practice torture, she does not rely on the international definition. That is wrong: the convention does not allow each country to adopt its own definition, otherwise the convention’s obligations would become meaningless. That is why other governments believe the U.S. ‘understanding’ cannot affect U.S. obligations under the convention.”
At the June 22, 2004, news conference, Gonzales said the White House defined torture as a “a specific intent to inflict severe physical or mental harm or suffering. That’s the definition that Congress has given us and that’s the definition that we use.”
However, on March 8, 2008, President Bush vetoed congressional legislation that called for a specific ban on waterboarding and other abusive interrogation techniques, including stripping prisoners naked, subjecting them to extreme cold and staging mock executions.
“This is no time for Congress to abandon practices that have a proven track record of keeping America safe,” the president said in a radio address explaining his veto.
“We created alternative procedures to question the most dangerous al-Qaeda operatives, particularly those who might have knowledge of attacks planned on our homeland.” Bush said. “If we were to shut down this program and restrict the CIA to methods in the [Army] field manual, we could lose vital information from senior al-Qaeda terrorists, and that could cost American lives.”