This year, when details were disclosed on the Bush administration's legal review of how the Geneva Conventions might apply to enemy combatants, White House counsel Alberto R. Gonzales dismissed as "irrelevant" one of the most troubling documents to come to light. It was an August 2002 memo prepared by the Justice Department's Office of Legal Counsel (OLC) that sought to explain what constituted illegal torture with regard to such prisoners under the Convention Against Torture. The memo asserted that only acts of "an extreme nature" (i.e., "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death") would constitute criminal violations under domestic and international law, and that acts that were merely cruel, inhuman or degrading might escape prosecution.
Late last month the Independent Panel to Review Department of Defense Detention Operations, chaired by former defense secretary James Schlesinger, released its report on allegations of prisoner abuse. The report states that an internal Defense Department working group set up in January 2003 "relied heavily on the OLC" in developing a list of 24 interrogation techniques that were subsequently approved by Defense Secretary Donald Rumsfeld on April 16, 2003, for use against al Qaeda and Taliban detainees at Guantanamo Bay, Cuba. According to the Schlesinger report, these interrogation techniques later "migrated" to Iraq.
So, contrary to the assertions of the White House counsel, it would appear that the Justice Department's memo, as well as the president's February 2002 memo declaring that fighters detained in Afghanistan were not entitled as a matter of law to the protections of the Geneva Conventions, were quite relevant to both Guantanamo and Abu Ghraib (where Iraqi detainees were covered by Geneva Conventions). At a minimum, they provided a legal backdrop for a series of contradictory and confusing policy memos signed by Rumsfeld and the commander of U.S. forces in Iraq that contributed to some of the abuse of detainees.
The Schlesinger report concludes that responsibility for that abuse goes beyond a handful of individual soldiers on the "late shift" at Abu Ghraib, or the failure of a few leaders to enforce proper discipline. "There is both institutional and personal responsibility at higher levels," it says. But the report stops short of asserting that the White House, Justice Department or CIA (which interrogated detainees in Afghanistan, Guantanamo and Iraq) shared this responsibility with the Pentagon's civilian and military leadership.
Perhaps the Senate Armed Services Committee can further resolve the issue of responsibility when it holds its hearing this week to receive testimony on the Schlesinger report, as well as on a report released in August by the Army investigating detainee abuses at Abu Ghraib. Specifically:
Did either the Schlesinger or Army investigations interview officials in the White House or at the Justice Department regarding the February or August 2002 memos relating to the Geneva Conventions and the Convention Against Torture?
What role did White House or Justice Department officials play in development of the memos on interrogation techniques signed by Rumsfeld in December 2002, January 2003 and April 2003?
Were other agencies -- specifically the State Department, which usually takes the lead in interpreting treaties such as the Geneva Conventions and the Convention Against Torture, or the National Security Council -- included in the process of developing approved interrogation techniques, and if not, why not?
Did guidance from the White House and the Justice Department with respect to the Geneva Conventions and the definition of torture in 2002 contribute to the chain of events in the Department of Defense and military command in Iraq leading to the abuses at Abu Ghraib?
Beyond the issue of responsibility for Abu Ghraib, the Senate should explore with the Schlesinger panel whether the administration's policy -- that the war on terrorism excuses the United States from some of the limitations stipulated by the Geneva Conventions -- creates a dangerous double standard. Many believe the administration's position undercuts a number of international accords (beyond Geneva) reached under presidents Reagan and George H.W. Bush making clear that certain acts -- torture, hostage-taking, attacks on domestic airlines -- are so reprehensible that they are unjustified for any reason.
Senators have an opportunity to begin laying the foundation for a new policy, one that reaffirms America's commitment to international agreements that remain relevant in a dangerous world.
The writer was director of defense policy and arms control on the National Security Council from 1993 to 2001. He teaches at the Hubert H. Humphrey Institute of Public Affairs at the University of Minnesota.