At Boston Public Latin School, founded in 1635, with such graduates as Samuel Adams (a key instigator of the American Revolution), serious study of American history was mandated. It was there that I learned we are a government of laws, not men. But recent leaks of our government’s justifications for selective use of torture against the enemy cause concern as to whether our leaders actually are adhering to this nation’s rule of law.
On June 7, the Wall Street Journal broke the story of a March 2003 Pentagon report, classified by Defense Secretary Donald Rumsfeld for release 10 years from now. It began:
“Bushadministration lawyers contended last year that the president wasn’t bound by laws prohibiting torture and that government agents who might torture prisoners at his directions couldn’t be prosecuted by the Justice Department.”
But should any such agents become defendants in a court of law, they can, as a defense, assert, “In order to respect the president’s inherent constitutional authority to manage a military campaign … [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his commander in chief authority.”
This legal advice was drafted by top-level civilian and uniformed lawyers from each military branch, in consultation with the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency and other intelligence agencies.
On June 10, the Financial Times reported that President Bush said he did not remember if he had seen these documents. As for whether he had made any directive concerning the protocols for torture, the president added, “The authorization I issued was that anything we did would conform to U.S. laws and would be consistent with international treaty obligations … We’re a nation of law. We adhere to laws.”
I, as well as other journalists, have a copy of that March 2003 Pentagon report, titled “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations.”
On reading it, it seems to me — as well as a range of experts in constitutional law — that this draft bypasses both the U.N. Convention Against Torture, which this nation ratified in 1994, and the 1992 Torture Victims Protection Act passed by Congress, forbidding our engaging in torture anywhere in the world.
Appearing before the Senate Judiciary Committee on June 8, Attorney General John Ashcroft — though no executive privilege was invoked — refused to turn over that report to the committee,even though large sections of it have been printed in the Wall Street Journal, Financial Times and other publications. At the least, the government should want to verify the accuracy of those reports.
Reacting to Mr. Ashcroft’s refusal, Sen. Patrick Leahy, ranking minority member of the Judiciary Committee, said: “If some in the administration believe that prosecuting privates and sergeants [in connection with abuses at the Abu Ghraib prison] will make this scandal go away, they are mistaken. The tone was set at the top, and we need to track the development of this administration’s policy on the use of torture.”
Democrats are not alone in believing there has to be an investigation (truly bipartisan, I would add) into the degree in which this report has been implemented — or has served to condone implicitly acts of coercion that violate our treaty obligations, our laws and our Constitution. But in this election year, will a Republican-controlled Congress and a Republican executive branch consider such an investigation?
In the June 10 Financial Times, Elizabeth Rindskopf Parker, former general counsel to the National Security Agency, as well as to the CIA during Republican administrations — and now dean of McGeorge School of Law — says that these government “operational considerations” in interrogating detainees “appear better designed to defending criminals than to guiding the policies of the world’s most powerful nation.”
Since this is the era of the 24-hour news cycle, the administration may be counting on this story fading from the media. If it does, at what cost will that be to the national values we are protecting in the war on terrorism? At what cost to any of our soldiers and other members of the military who may be captured overseas? This debate on torture, if it continues, should be way beyond political partisanship.
But I doubt that it will be.