A
Torturer's Charter
By Richard Norton-Taylor
12 June, 2004
The Guardian
On
the stage of a London theatre on Thursday night, a lawyer held up an
official US document, classified by Donald Rumsfeld as "secret"
and "not for foreign eyes". Considering its contents, the
document has attracted remarkably little attention here since it was
leaked this week to the US media. Its significance was raised by Clive
Stafford-Smith, director of the US-based group Justice in Exile, at
the end of a performance of Guantánamo, the Tricycle Theatre's
moving indictment of how the US rounded up detainees - or "unlawful
combatants", as it calls them - and sent them to the US base in
Cuba.
Stafford-Smith is
acting for some of the Guantánamo prisoners, challenging the
conditions in which they are being held. The US supreme court is expected
to give its ruling before the end of this month. Rumsfeld's classified
document, drawn up by US government lawyers, bears directly on the case.
It argues that American interrogators can ignore US domestic law banning
torture, because it would restrict the president's powers in his "war
on terror".
The document, drawn
up last year, says that "criminal statutes are not read as infringing
on the president's ultimate authority" over "the conduct of
war". It adds: "In order to respect the president's inherent
constitutional authority to manage a military campaign, [the prohibition
of torture] must be construed as inapplicable to interrogators undertaken
pursuant to his commander-in-chief authority".
Constitutionally,
America's founding fathers entrusted the president with the primary
responsibility, and therefore the power, to ensure the security of the
US in situations of "grave and unforeseen emergencies". It
goes on: "Numerous presidents have ordered the capture, detention,
and questioning of enemy combatants during virtually every major conflict
in the nation's history, including recent conflicts in Korea, Vietnam
and the Persian Gulf". And it continues: "Congress can no
more interfere with the president's conduct of the interrogation of
enemy combatants than it can dictate strategy or tactical decisions
on the battlefield."
The lengths to which
Rumsfeld's lawyers are prepared to go to protect the freedom of the
president's agents and place them above the law are reflected in other
passages.
The document states
that US interrogators can use harsh measures as long as they were not
"specifically intended" to inflict "severe mental pain
or suffering". In another passage, it says that even if an interrogator
"knows that severe pain will result from his actions, if causing
harm is not his objective, he lacks the requisite specific intent."
Interrogators can
appeal to the defence of "necessity" - in other words, they
can argue that torturing individuals is needed to prevent greater harm
or evil such as threats to the safety of the nation. And the concept
of "self-defence" is given the widest possible interpretation,
referring to the nation rather than any individual.
The document, on
the face of it, is a charter allowing the US president to abuse human
rights and ignore domestic as well as international law.
Stafford-Smith yesterday
pointed to what he called its most outrageous argument - namely, that
domestic law does not apply to actions inside the US. Torture can be
committed inside the US.
The Pentagon's lawyers
describe Guantánamo Bay as "included within the definition
of the special maritime and territorial jurisdiction of the US and accordingly
is within the US". They add: "Thus, the torture statute does
not apply to the conduct of US personnel" at Guantánamo
Bay.
The apparent non
sequitur is based on the argument that the statute is confined to actions
outside the US - in other words, that torture is not banned within the
US. Yet this directly contradicts claims made by other US government
lawyers who insist Guantánamo Bay detainees have no rights under
US law. The naval base, they insist, is not US sovereign territory so
the detainees do not have such basic rights as access to a fair trial.
The issue is now
before the US supreme court. If the detainees win this argument, it
could lead the way to at least some kind of judicial process, including
the testing of evidence. But whatever Guantánamo Bay's territorial
status, according to the Rumsfeld document, detainees there and anywhere
else can be tortured at will in Bush's global "war" on terrorism.
"The authorisation
I issued was that anything we did would conform to US laws and would
be consistent with international treaty obligations," Bush said
this week. Little comfort there.
· Richard
Norton-Taylor is the Guardian's security affairs editor