The military's top lawyers have told Republican Senators John Warner of Virginia and Lindsey Graham of South Carolina that the Bush administration's new rules for CIA interrogations of terror suspects could lead to violations of the Geneva Conventions, according to a report in yesterdays Boston Globe.
The Judge Advocates General of all branches of the military told the senators that a July 20 executive order establishing rules for the treatment of CIA prisoners appeared to be carefully worded to allow humiliating or degrading interrogation techniques when the interrogators' objective is to protect national security rather than to satisfy sadistic impulses.The Justice Dept. are protesting that the order is legal by international law - but back in 2002 they put their cards on display:
...The top JAG for the US Army, Major General Scott C. Black, followed up on the meeting this month by sending a memo to lower-ranking soldiers reminding them that Bush's executive order applies only to the CIA, not to military interrogations. Black told soldiers they must follow Army regulations, which "make clear that [the Geneva Conventions are] the minimum humane treatment standard" for prisoners.
"This Executive Order does not change the standard for the Army. . . . I want to ensure that there is no confusion concerning the Executive Order's lack of applicability to the Army," Black wrote in the memo, a copy of which was obtained by the Globe. "As a Corps, we must be diligent to ensure that all interrogation and detention operations comply with the Army standard."
In an e-mail yesterday, a Justice Department spokesman defended Bush's order as "consistent" with the minimum standards of humane treatment required by the Geneva Conventions.
But the JAGs told the senators that a key part of the order opens the door to violations of the section of the Geneva Conventions that outlaws "cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatment," officials familiar with the discussion said.
The JAGs cited language in the executive order in which Bush said CIA interrogators may not use "willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual." As an example, it lists "sexual or sexually indecent acts undertaken for the purpose of humiliation."
Among lawyers, "for the purpose" language is often used to mean that a person must specifically intend to do something, such as causing humiliation, in order to violate a statute. The JAGs said Bush's wording appears to make it legal for interrogators to undertake that same abusive action if they had some other motive, such as gaining information. Other law-of-war specialists agreed that this part of Bush's executive order creates an escape clause allowing abusive treatment.
The Bush administration legal team had previously invoked a similar "intent" loophole to give legal cover to harsh interrogations. In a once-secret Aug. 1, 2002, Justice Department memo about an antitorture law, the administration legal team said interrogators could avoid violating anti-torture laws if they said their motivation was protecting national security.Although the Justice Dept. subsequently said (after an outcry) that the 2002 order had been withdrawn, it seems obvious that the groundwork for any necessary defense for abuse of the Conventions has been laid.
"Even if the [interrogator] knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent," the 2002 memo read.
That the US Army's legal experts are genuinely troubled is borne out by their senior JAG's actions in clearly divorcing the Army from involvement in any such interrogation techniques. In recent months, other military lawyers involved in detainee tribunals have slammed the system, refused to prosecute because evidence was tainted by torture, and described the tribunal system as rigged to give verdicts which would enable continued detention of suspects without habeas corpus and other normal legal rights.