Cohn: Bush Defies Military, Congress on Torture

After the grotesque torture photographs emerged from Abu Ghraib prison in April 2004, Bush said, "I shared a deep disgust that those prisoners were treated the way they were treated." He vowed the incidents would be investigated and the perpetrators would "be taken care of."

Bush seemed shocked to learn of torture committed by US forces. But then someone leaked an explosive Department of Justice memorandum that had been written in August 2002. The memo presented a blueprint explaining how interrogators could torture prisoners and everyone in the chain of command could escape criminal liability for war crimes. It said the President was above the law. That memo set the stage for the torture of prisoners in US custody.

Now we learn that, in early 2003, several senior uniformed military lawyers from each of the services voiced vigorous dissents to the policies outlined in the Justice Department's 2002 memo.

Maj. Gen. Jack L. Rives, the Air Force deputy judge advocate general, wrote that several of the "more extreme interrogation techniques, on their face, amount to violations of domestic criminal law" as well as military law. In fact, Rives added, use of many of these techniques "puts the interrogators and the chain of command at risk of criminal accusations abroad." Rives was talking about the well-established concept of universal jurisdiction, according to which any nation has the authority to prosecute any person for the commission of war crimes.

The tactics proposed in the 2002 memorandum also troubled Rives because he felt the new interrogation policies threatened to undo progress the military had made since the Vietnam War. Accusations of war crimes committed by US forces during Vietnam damaged the military "culture and self-image," Rives wrote. Post-Vietnam military programs that emphasize compliance with the laws of war have "greatly restored the culture and self-image of US armed forces," according to Rives.

Moreover, Brig. Gen. Kevin M. Sandkuhler, a senior Marine lawyer, wrote that military lawyers believed the harsh interrogation system could have adverse consequences for American service members. These might include diminished "public support and respect of US armed forces, [as well as loss of] pride, discipline, and self-respect within the US armed forces." The interrogation regime could also jeopardize military intelligence-gathering and efforts to obtain support from allied countries.

The Justice Department "does not represent the services; thus," said Sandkuhler, "understandably, concern for service members is not reflected in their opinion."

But allegations of torture have persisted, even after these concerns were expressed. The continuing allegations have led influential members of Congress to propose amendments to a $491 billion defense bill that would prevent the mistreatment of prisoners.

Republican Senator Lindsey Graham has proposed an amendment to define who is an "enemy combatant" for purposes of detention and military trials of detainees at Guantánamo Bay, Cuba. At present, Bush claims total discretion to make that determination.

Republican Senator John McCain, a prisoner of war for six years during the Vietnam War, proposes an amendment to set uniform standards for anyone detained by the Defense Department. It would limit interrogation techniques to those contained in the Army field manual, which is currently being revised.

McCain also proposes that all foreign nationals held by the US military be registered with the International Committee of the Red Cross, as required by the Geneva Conventions. This would prevent the holding of "ghost detainees."

The most significant amendment McCain advocates would prohibit the "cruel, inhuman or degrading treatment or punishment" of anyone in US custody, consistent with our obligations under the Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment.

As ratified treaties, including the Geneva Conventions and the Torture Convention, are part of US law, it shouldn't even be necessary to pass amendments enshrining already binding obligations.

Nevertheless, Bush has threatened to veto the spending bill "if legislation is presented that would restrict the President's authority to protect Americans effectively from terrorist attack and bring terrorists to justice."

These are Bush's buzz words for opposing any interference with his unfettered authority to order the torture of prisoners in US custody.

Bush persists in ignoring the warnings of our top military leaders, who believe American security is endangered by the harsh interrogation policies. And he threatens to defy Congress as well by opposing amendments that would hold him and his administration accountable for torture and inhuman treatment.

A group led by Democratic Senator Carl Levin seeks an amendment calling for an independent commission, like the 9/11 Commission, to investigate the Bush administration's interrogation policies and mistreatment of prisoners.

This amendment is probably the most threatening to Bush and his deputies. A truly independent investigation would likely uncover criminal liability all the way up the chain of command to the White House.

Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.

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