WASHINGTON – Democrats say Justice Department memos contending that a wartime president is not bound by anti-torture principles could have laid the legal groundwork for the prisoner abuses that took place in Iraq and elsewhere.
Rep. Jane Harman of California, senior Democrat on the House Intelligence Committee, on Wednesday released excerpts of one internal Bush administration memo and called its views "antithetical to American laws and values" in arguing that torture may be justified and that the president is above the law in his role as commander-in-chief.
"This memo is shocking in that it appears to justify torturing prisoners in U.S. control," Harman said.
Attorney General John Ashcroft (search), in a letter Tuesday to Sen. Patrick Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee, laid out the administration's legal reasoning on the issue in greater detail than before and denied that the Justice Department was condoning torture.
"The department has done no such thing," Ashcroft said in the letter.
Ashcroft told senators at a Judiciary Committee hearing Tuesday that his department will vigorously investigate those accused of it who are outside military jurisdiction.
"This administration rejects torture," Ashcroft said. Later, he added: "I don't think it's productive, let alone justified."
Still, the attorney general refused to give the committee copies of department memos written in 2002 that Democratic senators said could have laid legal groundwork for abuses that occurred at Iraq's Abu Ghraib prison (search) and elsewhere in the war on terror.
"I do believe the president has the right to have legal advice from his attorney general and not have that revealed to the whole world," said Ashcroft. Yet the administration was not invoking executive privilege claims to protect the documents, he said.
One of the memos, cited in a March 2003 Pentagon policy paper, stated that the president's broad wartime national security authority may override anti-torture laws and treaties, including the Geneva Conventions, in certain circumstances.
Waving photos of abused prisoners in Iraq, Sen. Edward M. Kennedy, D-Mass., said such memos could lead to interpretations by military personnel or interrogators that laws and agreements that forbid torture were no longer in effect.
"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," Kennedy said.
Ashcroft said, however, that the Bush administration has done nothing that "has directly resulted in the kind of atrocity which were cited. That is false."
Several Democrats said Ashcroft was coming close to contempt of Congress by refusing to provide the memos, many of which have been subjects of published news stories. Sen. Charles Schumer, D-N.Y., scolded Ashcroft by saying "sometimes you're your own worst enemy" by invoking secrecy.
Some Republican senators rallied to the administration's defense Tuesday on the Justice Department memos, arguing that their release could lead to misinterpretation about U.S. policy regarding torture. Sen. John Kyl, R-Ariz., said terrorists could train to resist certain interrogation techniques if documents detailing them were made public.
Sen. Joseph Biden, D-Del., suggested that American military personnel could be in greater danger of torture because of the U.S. mistreatment.
"That's why we have these treaties. So when Americans are captured, they are not tortured. That's the reason, in case anybody forgets it," said Biden, noting that his son, Beau, is in training for the Delaware National Guard's judge advocate general office.
Glaring back at the committee, Ashcroft responded that his son, Andy, recently returned from duty in the Persian Gulf aboard a Navy destroyer, the USS McFaul, and is scheduled to return there soon.
"Well, as a person whose son is in the military now on active duty and has been in the Gulf within the last several months, I'm aware of those considerations," he said.
Ashcroft also told the committee that the Bush administration had determined that Al Qaeda operatives were not covered by the Geneva Conventions (search) because they did not belong to governments that had signed the agreements and did not meet other requirements, such as wearing of recognizable military uniforms.
Nonetheless, Ashcroft said, Bush issued a directive requiring that Taliban and Al Qaeda captives be treated under the same principles as other soldiers. Most of those prisoners are held on a U.S. naval base at Guantanamo Bay, Cuba, and testimony at hearings on the Abu Ghraib abuses said Bush had ordered that their treatment be "consistent with" the Geneva principles.