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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2859

De-Classified US Torture Memo Justified Inhuman /Degrading Treatment for Captured Enemy Combatants in War on Terror

Daya Gamage – US National Correspondent for Asian Tribune

Washington, DC., 05 April ( United States Federal laws prohibiting assault and other crimes did not apply to military interrogators who questioned ‘enemy combatants’ in America’s Global War on Terror because the president’s ultimate authority as commander-in-chief overrode such statutes, according to a newly declassified 2003 Justice Department memo released Tuesday, April 2.

The memorandum was ordered to be released by the judiciary under the Freedom of Information Act.

The memo–which was rescinded just nine months after it was issued–provides an expansive argument for nearly unfettered presidential power in a time of war, contending that numerous laws and treaties, domestic and international, that forbid torture or cruel treatment should not apply to the interrogations of enemy combatants overseas.

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," the US Justice Department memorandum states. "In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

After the Democratic Party wrested control of both Chambers of the Congress in January 2005 it passed the Detainee Treatment Act of 2005, which required the Defense Department to limit interrogation technique to those described in the Army Field Manual. In 2006, the Army rewrote the manual, which now specifically prohibits many of the tactics the Bush administration sought to use.

The Justice Department’s declassified 2003 memorandum was long sought by congressional Democrats and other administration critics that outline the government's legal justification for harsh interrogation techniques used by the military against captured enemy combatants outside the United States.

Sen. Patrick Leahy of the Democratic Party, chairman of the Senate Judiciary Committee, which has repeatedly asked the Justice Department to release the memo and others like it, responded to the release of the declassified Justice Department memo:

“It has been more than four months since I asked the White House – again – to declassify the secret Justice Department opinions on interrogation practices. Today’s declassification of one such memo is a small step forward, but in no way fulfills those requests. The administration continues to shield several memos even from members of Congress.

“The memo they have declassified today reflects the expansive view of executive power that has been the hallmark of this administration. It is no wonder that this memo, like the now-infamous “Bybee memo”, could not withstand scrutiny and had to be withdrawn. Like the “Bybee memo”, this memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country’s status as a beacon of human rights around the world.”

The issue of torture, degrading and inhuman treatment of ‘enemy combatants’ in the Global War on Terror undertaken by the United States since 9/11 violating domestic Federal laws and international covenants ratified by the United Nations was brought to the attention of the World Body in January 2005 by a Washington-based prominent human rights organization The World Organization for Human Rights USA.

In its comprehensive investigative research paper submitted to the UN it reminded the moral duty of the United States to uphold the universally accepted practices on human rights in the following paragraph:

“For many years the U.S. Government has been among the most forceful advocates pointing out the major human rights abuses of other governments, especially where acts of torture were concerned, and working hard to prevent these types of abuses from occurring.

Even today the U.S. is playing a major role in pointing out the emerging pattern and policy of genocide in Sudan, and seeking to prevent abuses there and in many other countries where persecution and violations of fundamental international human rights standards are taking place. For our government to remain credible in these efforts, and to continue to play a major role in promoting and protecting human rights worldwide, the U.S. must use special care not to fall prey to the same types of actions, and the same justifications, that torturers, dictators and persecutors in so many other nations have used in the past, and which until now we have properly rejected.”

With the release of the March 13, 2003 Justice Department Memorandum the inhuman and degrading treatment were centered around ‘enemy combatants’ taken in for questioning on foreign soil in America’s Global War on Terror, but the investigative/research report submitted by the above Washington-based human rights organization in January 2005 told the United Nations that the American citizens too were subject to such treatment.

This is what it said:

“It is important to note four things in this regard. First, the pattern and practice of torture that has been uncovered is not limited to those captured on fields of battle in Afghanistan and Iraq. A number of U.S. residents, and some U.S. citizens, have been similarly treated. We are not dealing here only with the treatment of foreigners captured on a battlefield in the midst of an armed conflict, who are deemed to have committed war crimes or crimes against humanity. These violations of the Torture Convention cover a wide range of practices, and impact a large number of individuals, going well beyond those the Government has designated as “unlawful enemy combatants.”

The report to the UN further noted: “The alleged torture abuses are associated with a wide and ever increasing range of violations of international human rights standards, not simply the use of torture for interrogation purposes. They include “rendition to torture,” the improper use of the designation of “unlawful enemy combatant” to justify arbitrary, indefinite detention and the prosecution of suspected terrorists through the use of unlawfully constituted military courts, and the unlawful execution of detainees during questioning. The recently revealed plan of detaining suspected terrorists in special foreign prisons on a permanent basis is just the latest in the long and increasing list of unlawful activities violating the anti-torture prohibitions of Convention Against Torture (CAT) that the U.S. Government is engaging in under the justification of fighting a “war against terrorism.”

The World Organization for Human Rights USA in this January 2005 memorandum to the World Body rejected the US administration’s claim that these abuses were isolated incidents but was established policy stating that written justifications for those actions had been issued by the U.S. Government.

This is what the rights organization said at that time:

“Perhaps most important, the U.S. Government’s claim that the abuses that have taken place are the isolated, aberrant actions of a few individuals acting on their own volition who have been, or are in the process of being, prosecuted for their crimes, must be rejected. The nature and scope of the abuses that are taking place, and the written and oral justifications for actions of this type that have been issued by the U.S. Government at the highest levels (some of which have since been repudiated), suggest that the use of torture to combat terrorism unfortunately has become part of official policy, or if not formally authorized that it has at least has been approved and acquiesced in as a matter of military necessity. Some of the most recent revelations concerning abuse of detainees in the Guantanamo Bay facility suggest that those committing the violations believed they had been ordered or approved at the highest levels of government based on legal memoranda issued by the U.S. Department of Justice and the Defense Department, and approved by the Office of the Counsel to the President, suggesting that certain forms of abuse were justified to obtain information, and that the legality of these practices could not be questioned since they were taking place pursuant to “military necessity,” and could be excused by the President pursuant to his war powers.”

The “written justification” the Washington-based human rights organization said was about the Justice Department document such as the one that was declassified and released, under court order, on Tuesday, April 02, 2008.

The 81-page document was sent to the Pentagon’s general counsel on March 14, 2003 by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel and presently a law professor in the University of California/Berkley, and became the legal foundation for the Defense Department’s use of aggressive interrogation practices.

The memo or the document asserts that domestic and international laws and treaties, as well as the U.S. Constitution, would not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

The March 14, 2003 memo says the Constitution was not in play with regard to the interrogations because the Fifth Amendment of the US Constitution (which provides for due process of law) and the Eighth Amendment (which prevents the government from employing cruel and usual punishment) does "not extend to alien enemy combatants held abroad.”

The memo goes on to explain that federal criminal statutes regarding assault and other crimes against the body don't apply to authorize military interrogations overseas and that statutes that do apply to the conduct of U.S. officials abroad pertaining to war crimes and torture establish a limited obligation on the part of interrogators to refrain from bodily harm.

It also defines the United States' obligations under the United Nations Convention Against Torture and other international treaties prohibiting torture to be confined to ensuring that interrogators do not apply "cruel and unusual punishment" as defined by American constitutional law, regardless of differing international standards.

The release of the contents of the ‘infamous memorandum’ brought sharp criticism of the Bush administration in particular and moral aptitude of the United States as a champion of global human rights in general.

"Today's news that the Justice Department gave legal cover to the military to use torture and other cruel and inhuman interrogation techniques shocks the conscience," said Democratic Senator Joseph Biden.

"This memo created the lawless atmosphere that led directly to the abuse of detainees at Abu Ghraib. Those who wrote it and those who approved it should be held accountable," the chairman of the Senate Foreign Relations Committee added in a statement.

Senate Judiciary Committee Chairman and Chairman of the Senate Sub-Committee on Foreign Appropriations Patrick Leahy said:

“The memo they have declassified today reflects the expansive view of executive power that has been the hallmark of this administration. It is no wonder that this memo, like the now-infamous “Bybee memo”, could not withstand scrutiny and had to be withdrawn. Like the “Bybee memo”, this memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country’s status as a beacon of human rights around the world.”

It is the Senate Foreign Relations Committee, under the 1976 Foreign Assistance Act, scrutinizes the State Department released annual Country Reports on Human Rights Practices that carry human rights status of about 190 nations world wide.

The Senate Sub-Committee on Foreign Appropriations too scrutinizes human rights records of about 190 countries world wide before approving the US Government annual budget which includes economic and military assistance to foreign nations.

The US Department of State on March 11, 2008 issued its annual Country Reports on Human Rights Practices on 190 nations.

- Asian Tribune -

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