Washington, 9 June 2004 (RFE/RL) -- In testimony yesterday before the Senate Judiciary Committee, Attorney General John Ashcroft responded to questions concerning Justice Department memos suggesting that the president, as commander in chief of the armed forces, is not necessarily bound by laws and conventions against torture.
The memos were recently leaked to the news media. One of the memos states that a president's broad authority in wartime could override antitorture laws and treaties, including the Geneva Conventions, in certain circumstances. The memos also specify the degree of pain and suffering that can be legally inflicted.
Ashcroft was unyielding in his defense of the Bush administration, saying it opposes torture, it never ordered it, and that his Justice Department will prosecute any violations of U.S. laws forbidding the practice.
But the attorney general refused to make any direct comments on the details of the memo, and said he would not make the document available to committee members. Ashcroft explained that to do so would put unacceptable limits on the candor with which he or other cabinet members advise the president.
Democratic Senator Joseph Biden noted that prohibitions against torture are designed to ensure that Americans taken prisoner are also treated humanely.
One of the panel members, Democratic Senator Edward Kennedy, a vocal critic of Bush, suggested that the very existence of the memos -- whether they were formally adopted or not -- could have led to the abuse and torture of Iraqi prisoners at the Abu Ghurayb prison outside Baghdad.
Kennedy held up several photos of the abuse and said: "We know when we have these kinds of orders what happens. We get the stress test, we get the use of dogs, we get the forced nakedness that we've all seen, and we get the hooding. This is what directly results when you have that kind of memoranda out there."
Ashcroft responded unequivocally. "Let me completely reject the notion that anything that this president has done or the Justice Department has done has directly resulted in the kind of atrocities which were cited," he said. "That is false. It is an inappropriate conclusion. The kind of atrocities which the senator [Kennedy] has [cited] and which he has displayed in the photographs that he raised are being prosecuted by this administration."
Democratic Senator Joseph Biden said Ashcroft's refusal to turn over the memos might place him in contempt of Congress. Biden noted that prohibitions against torture are designed to ensure that Americans taken prisoner are also treated humanely.
But James Phillips told RFE/RL that Kennedy and other Bush administration critics may be misinterpreting the nature of the memos and their significance. Phillips analyzes U.S. foreign policy and national security issues at the Heritage Foundation, a private policy-research center in Washington.
Phillips said that international treaties forbidding the torture of prisoners were written to protect captured soldiers from traditional uniformed armies, not the enemies that the United States is fighting in Bush's war against groups such as Al-Qaeda, or the current conflict in Iraq. "They're following international law, but the international laws with regard to treatment of prisoners is applied to armies, not to irregular forces, especially not to terrorists," he said.
Further, Phillips said there is no evidence that the memo was meant to promote a policy. He said it may have been just one of several documents written to outline a variety of hypothetical ways to respond to the new realities of 21st-century warfare. "I'm not sure of the context, if there are other memos written on the same subject, but I think it's a mistake to pick out one memo and hold that up to make partisan political points when the context is not clear," he said.
Phillips believes Bush's critics are exploiting the reports about the memos and linking them to the abuses at Abu Ghurayb for partisan political reasons. He said he believes the memos were leaked to the news media for the same reasons.
Thomas Malinowski takes an entirely different view. Malinowski, a Washington-based U.S. foreign-policy analyst at the advocacy group Human Rights Watch, finds the reports disturbing, and said they could hurt the United States in ways that are not limited to diplomacy.
First, Malinowski said there is nothing in U.S. or international law to support the idea that a president can ignore laws and treaties, even under the so-called ticking-time-bomb scenario. That refers to the need to extract information quickly from a suspect who may have knowledge of the timing and location of an imminent attack.
Such cases of "ticking time bombs" may be common in fiction, but Malinowski said they almost never occur in reality. Some of the people detained in Afghanistan and Iraq, he said, are ordinary prisoners who may be able to inform on groups and activities in general terms, but not on impending attacks.
Rather than protecting anyone, such memos serve to hurt the United States, Malinowski said -- especially if its enemies choose to treat captured U.S. soldiers the way some Iraqis were treated at Abu Ghurayb. "The impact that [memo] has is just tremendous, in terms of diminishing America's moral authority around the world, hurting America's ability to build alliances with other countries, other people, in the war on terror, and endangering Americans in uniform," he said. "If the president of the United States can set the law aside because he feels he needs to defend the country, then so can Saddam Hussein, so can anybody."
Malinowski said the memo on torture reminds him of the Bush administration's opposition to the International Criminal Court (ICC). The ICC is a permanent tribunal set up at The Hague to replace the courts that have been set up to try specific cases, such as the International Criminal Tribunal for the former Yugoslavia.
Two years ago, 60 members of the United Nations ratified the Treaty of Rome setting up the ICC, giving it enough votes to enable the court to begin functioning. But the United States notified the UN that it would not participate. Supporters of the court say it cannot be effective without U.S. involvement.
Malinowski said the idea that a president can place himself above laws and treaties has an interesting parallel with Bush's opposition to the ICC -- but with a different slant. "In the ICC case, [Bush's advisers] were saying, '[Americans are] going to be subject to frivolous, politically motivated accusations,'" he said. "Here, in these memos [on torture], they're arguing, 'We may actually have to commit a crime, a real crime, and we don't want to be held accountable for that crime, and here's how we can get away with that.'"