[NYTr] Military Warns Against CIA Torture Under New Bush Rules

[All the News That Doesn't Fit]

The Boston Globe - Aug 25, 2007
http://www.boston.com/news/nation/washington/articles/2007/08/25/military_cites_risk_of_abuse_by_cia/

Military cites risk of abuse by CIA

New Bush rules on detainees stir concern

By Charlie Savage
Globe Staff

WASHINGTON -- Top military lawyers have told senators that President
Bush's new rules for CIA interrogations of suspected terrorists could
allow abuses that violate the Geneva Conventions, according to Senate
and military officials.

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 JAGs expressed their concerns at a meeting late last month with
Senators John Warner of Virginia, Lindsey Graham of South Carolina, and
an aide representing John McCain of Arizona, who could not attend
because he was campaigning for president. All three senators are
Republicans who have been key proponents of laws banning the abuse of
detainees, and have vowed to monitor the Bush administration's
treatment of prisoners.

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.

Two former Reagan administration officials, Robert S. Turner and P.X.
Kelley, wrote an op-ed page piece in The Washington Post on July 26
criticizing Bush's order as a violation of the Geneva Conventions that
could endanger captured US soldiers by eroding respect for the treaty.
Among their criticisms, they also singled out the "for the purpose"
wording.

"As long as the intent of the abuse is to gather intelligence or to
prevent future attacks, and the abuse is not 'done for the purpose of
humiliating or degrading the individual' -- even if that is an
inevitable consequence -- the president has given the CIA carte blanche
to engage in 'willful and outrageous acts of personal abuse,' " the two
wrote.

Erik Ablin, a Justice Department spokesman, yesterday rejected that
interpretation of the order. In an e-mail, he said the order "simply
requires AN intent to humiliate and degrade the individual" -- for any
reason -- before an interrogator's conduct would be considered a war
crime. He said this standard was consistent with how international war
crimes tribunals have interpreted the treaty.

But in an interview yesterday, Turner, who is now a University of
Virginia law professor, said the Justice Department was "playing
games," and called its explanation "a con." He said "the only
reasonable interpretation of that language is that if your purpose in
doing this is not to humiliate and degrade the guy, then that clause
doesn't apply."

Turner's vehement criticism is particularly significant because he has
been a rare and outspoken defender of the Bush administration in other
controversies related to presidential power and the war on terrorism.
Turner has repeatedly testified before Congress that Bush's signing
statements and his warrantless wiretapping program are lawful and
appropriate, for example.

The current dispute grew out of a June 2006 Supreme Court ruling that
the Geneva Conventions apply to the war on terrorism. The court
rejected Bush's declaration after the terrorist attacks of Sept. 11,
2001, that suspected Al Qaeda and Taliban prisoners are not protected
by the war-crimes treaties.

After the ruling, Congress passed a law requiring that Bush issue a
public order detailing his interrogation policy. That led to Bush's
July 20 executive order.

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.

"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.

The memo was leaked after the Abu Ghraib torture scandal in 2004 and
sparked an outcry over its permissive attitude toward torture.

It was subsequently withdrawn by the Justice Department.

© Copyright 2007 Globe Newspaper Company.