By David Ignatius
Tuesday, June 15, 2004; Page A23
"The instructions went out to our people to adhere to law. That ought to comfort you," President Bush said brusquely when questioned last week about a Justice Department legal opinion authorizing harsh interrogation techniques.
We can now see the August 2002 legal opinion for ourselves, thanks to The Post, which posted the complete text on its Web site Monday. Reading the memo's legalistic explanation of why "the mere inflicting of pain or suffering on another" is not torture, you begin to understand why Attorney General John Ashcroft refused last week to release the opinion himself -- and why Bush's description of it was so misleading. The document, in its dry, lawyerly way, is as shocking as the Abu Ghraib photographs.
Contrary to Bush's account, the Justice Department memo wasn't an affirmation of laws that ban torture. Instead, it was a legal interpretation explaining how CIA interrogators could avoid liability under those laws, even if they used methods that might commonly be regarded as torture.
To understand the memo, a little background is useful. It was requested by the CIA, which wanted explicit White House authorization before using harsh interrogation techniques against al Qaeda suspects at Guantanamo Bay. Basically, agency officials didn't want to be the fall guys for presidential policy, so they asked for it in writing.
The Justice Department's top in-house lawyer, Assistant Attorney General Jay S. Bybee, responded on behalf of the Office of Legal Counsel. His memo offered three basic arguments to reassure interrogators that even if they inflicted pain and suffering on captives, they could escape legal prosecution. First, the memo parsed the meaning of Section 2340 of the U.S. Criminal Code banning torture abroad -- defined as any act "specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control."
With a lawyer's hideously bland precision, the memo countered that "mere" pain wasn't enough: "Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
That was the first line of defense for White House-sanctioned torturers: They would be okay if they avoided "the most egregious conduct" and "extreme acts."
The second defense was that the president's warmaking powers transcend normal criminal statutes. "As commander in chief, the president has the constitutional authority to order interrogations of enemy combatants," the memo noted. Any legal effort "that interferes with the president's direction of such core war matters as the detention and interrogation of enemy combatants would thus be unconstitutional."
The third defense was that even if interrogators should someday be charged with torture, they could cite special mitigating circumstances, such as "necessity" or "self-defense." These factors "would potentially alleviate criminal liability," even if an interrogation method "might arguably cross the line drawn in Section 2340." In other words, even if you do something illegal, we can get you off.
The Justice Department memo was intended to reassure CIA interrogators about inflicting pain and suffering on captives. But if they were still squeamish, they could use a procedure known as "rendition." That dry term refers to the agency's practice of sending uncooperative al Qaeda suspects to Egypt, Syria, Saudi Arabia and other nations that are known to use torture. Those folks don't have an Office of Legal Counsel, and they don't scruple about a few lost fingernails or broken bones.
Banning torture is a practical as well as a moral issue. Why? Note this threat last weekend by al Qaeda kidnappers in Saudi Arabia: "We have our legal right to treat [Americans] the same way they treat our people."
When the Abu Ghraib scandal broke, top Bush administration officials tried to dismiss it as the work of "a few bad apples." But it is increasingly clear that the problem is with the barrel, not just the apples. Abu Ghraib was a particularly graphic and appalling instance of an archipelago of cruel interrogation techniques that were explicitly authorized by the administration.
When we read the legalisms penned by a respected lawyer (Bybee is now a federal judge) we realize again how much America was put off balance by Sept. 11, 2001. Frightened by a deadly and ruthless enemy, the Bush administration embraced the anything-goes logic of total war.
America must regain that balance, three years after Sept. 11. We must restore meaning to the phrases Bush used to dismiss criticism last week: "We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you."
© 2004 The Washington Post Company