More Torture Memos

Sunday, October 7, 2007

PRESIDENT BUSH said Friday, as he has many times before, that "this government does not torture people." But presidential declarations can't change the facts. The record shows that Mr. Bush and a compliant Justice Department have repeatedly authorized the CIA to use interrogation methods that the rest of the world -- and every U.S. administration before this one -- have regarded as torture: techniques such as simulated drowning, induced hypothermia, sleep deprivation and prolonged standing.

The New York Times reported last week that the Justice Department's Office of Legal Counsel issued two classified memos in 2005 to justify techniques that the Central Intelligence Agency had used when interrogating terrorism suspects abroad -- and to undercut a law passed by Congress that outlawed "cruel, inhuman and degrading treatment." Those opinions form part of a continuing pattern, beginning in 2002 and extending until this past summer, of secret -- and highly questionable -- legal judgments by Bush-appointed lawyers intended to circumvent U.S. law, treaty commitments, legislation passed by Congress and Supreme Court decisions -- all of which should have prevented the abuse of prisoners.

The administration has essentially been operating its own clandestine legal system, unaccountable to Congress or the courts. The resulting violations of basic human rights have cost the country incalculable prestige abroad and put its own citizens in danger of being subjected to similarly harsh treatment. That is particularly true since July, when Mr. Bush signed an executive order that allowed the CIA to resume using "enhanced interrogation techniques" on prisoners after a hiatus of more than 18 months.

For nearly six years, Congress has failed to take effective action against these abuses. Predictably, lawmakers are now calling for the administration to release the two Justice Department memos from 2005. Fair enough, but the relevance of those documents has been diminished by last year's passage of the Military Commissions Act, which contained new, if inadequate, strictures on prisoner treatment. Mr. Bush's executive order of July was tailored to that law; while some techniques, such as simulated drowning, have been dropped, others are again in use.

The president said Friday that congressional leaders have been briefed on those techniques. Those legislators should be raising objections to any that appear to violate the Geneva Conventions' prohibition of "humiliating" or "degrading" treatment and demanding to see the latest legal memos. Even better would be for Congress to curtail further abuses by mandating that the Army's interrogation manual, which now covers treatment of all prisoners in the Pentagon's custody, cover all other foreign detainees.

Torture will probably be a prime topic at the confirmation hearing of attorney general nominee Michael B. Mukasey -- and rightly so. Mr. Mukasey should be pressed for a commitment that the Justice Department's guidance about current CIA interrogation techniques will strictly apply U.S. statutes and Supreme Court rulings -- and that he will share that guidance with Congress. He also needs to be asked about how, if confirmed, he plans to rehabilitate the Office of Legal Counsel. Once valued for its ability to give independent and unfiltered legal advice to the executive, the office has deteriorated under Mr. Bush's leadership to become the equivalent of a legal yes man. This dishonors its proud tradition and removes a desperately needed internal check on executive excesses -- especially in an administration that so eagerly shuns the Constitution's checks and balances.

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