Bush Has Authority to Legally Order Torture, Administration Lawyers Argued

WASHINGTON – A group of lawyers in the Bush administration argued in a paper last year that the president has supreme authority over the questioning of terrorist suspects, and can legally order interrogators to torture or commit other crimes against them.

The lawyers, not identified by name, were part of a working group writing a policy governing interrogation techniques to be used at the prison for terrorist suspects at the U.S. naval base at Guantanamo Bay (search), Cuba.

The arguments are one group's reflections on interrogation law and torture, Pentagon spokesmen said, and the legal latitude they describe is wider than the military gives itself.

Pentagon spokesman Lawrence Di Rita (search) said Monday that the final set of interrogation methods adopted for use at Guantanamo in April 2003 are humane, legal and useful. It is a narrower set of methods than some had proposed.

Di Rita described the paper as a staff legal analysis that was part of an internal Bush administration debate on how to obtain intelligence from Al Qaeda (search) operatives in U.S. custody, within the confines of a standard of humane treatment. The intelligence sought was to prevent terrorist attacks, he said.

The contents of the paper, labeled "draft" and dated March 6, 2003, were first reported in Monday's The Wall Street Journal. A portion of it was then obtained by The Associated Press. The lawyers who authored it include attorneys from both the Defense and Justice Departments, and possibly other parts of the government.

At a minimum, the paper offers insight into some of the legal thinking going on within the Bush administration regarding the prosecution of the war on terrorism. It discusses both domestic law and international treaties governing torture and the treatment of prisoners, and concludes Bush has vast legal authority for a number of reasons.

Mary Ellen O'Connell, a professor of international law at Ohio State University who has seen the draft paper, called its arguments unconvincing.

"In every case it finds defenses, narrower readings of that statute, or justifications that allow torture in a wide variety of circumstances," she said. "The legal analysis is weak."

Ultimately, the Pentagon adopted a set of 24 interrogation methods it would use at Guantanamo, Di Rita said. The majority are psychological tricks and techniques described in Army field manuals.

The seven techniques not found in manuals include isolating a prisoner from others, altering his diet (but still providing him adequate food to survive), and questioning him up to 20 hours at a time for up to three days, he said.

Four of the seven nonstandard methods require at least tacit approval from Defense Secretary Donald Rumsfeld (search). None are torture in the Pentagon's view, Di Rita said.

"It's my belief that Americans would find them perfectly reasonable," he said. "There's nothing that involves deliberately applying pain."

The four methods have been used on two inmates at Guantanamo, including one who may have been designated a "20th hijacker" in the Sept. 11 plot, military officials said.

Gen. James T. Hill, the senior commander with authority over Guantanamo Bay, said last week that interrogators do not use dogs or drug injections during interrogations.

However, the lawyers who wrote the March 2003 paper suggested the U.S. government may have the authority to conduct some drug injections during interrogation as long as they don't "disrupt profoundly the senses or personality."

The lawyers identify three concepts that would permit American personnel to commit crimes in the course of interrogation.

One is that President Bush, as commander in chief of the military, has complete authority to make war, and interrogating prisoners falls within that scope. It likens congressional or judicial review of interrogation procedures to Congress, or a court, interfering with the planning of a battle.

"In order to respect the President's inherent constitutional authority to manage a military campaign, ... [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority," the paper says.

Another, termed necessity, is that hurting or even killing one person to save two lives is justified. The third concept, self-defense, says the harsh interrogation of a prisoner believed to have information on an imminent terrorist attack is the same as shooting someone pointing a gun at you. Law professor O'Connell called that an "absurd" leap, saying the situations are not legally equivalent.