Bush lawyers' '03 memo gave nod to torture

Neil A. Lewis and Eric Schmitt, New York Times
Tuesday, June 8, 2004



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Washington -- A team of administration lawyers concluded in a March
2003 legal memorandum that President Bush was not bound by either an
international treaty prohibiting torture or by a federal anti-torture
law because he has the authority as commander in chief to approve any
technique needed to protect the nation's security.

The memo, prepared for Defense Secretary Donald Rumsfeld, also said
that any executive branch officials, including those in the military,
could be immune from domestic and international prohibitions against
torture for a variety of reasons. One reason would be, the lawyers
said, if military personnel believed they were acting on orders from
superiors "except where the conduct goes so far as to be patently
unlawful."

"In order to respect the president's inherent constitutional authority
to manage a military campaign," the lawyers wrote in the 56-page
confidential memorandum, the prohibition against torture "must be
construed as inapplicable to interrogation undertaken pursuant to his
commander-in-chief authority."

Senior Pentagon officials on Monday sought to minimize the
significance of the March memo, one of several obtained by the New
York Times, as an interim legal analysis that had no effect on revised
interrogation procedures that Rumsfeld approved in April for the U.S.
military prison at Guantanamo Bay, Cuba.

"The April document was about interrogation techniques and
procedures," said Lawrence Di Rita, the Pentagon's chief spokesman.
"It was not a legal analysis."

Di Rita said the 24 interrogation procedures permitted at Guantanamo,
four of which required Rumsfeld's explicit approval, did not
constitute torture and were consistent with international treaties.

The March memorandum, which was first reported Monday by the Wall
Street Journal, is the latest internal legal study to be disclosed
that shows that the administration's lawyers were set to work after
the Sept. 11 terrorist attacks to find legal arguments to avoid
restrictions imposed by international and American law.

The report also said that interrogators could justify breaching laws
or treaties by invoking the doctrine of necessity. An interrogator
using techniques that cause harm might be immune from liability if he
"believed at the moment that his act is necessary and designed to
avoid greater harm."