A Record of Injustice

By Christy Harvey and Judd Legum and Jonathan Baskin, The Progress Report. Posted November 11, 2004.

An August 2002 Justice Department memo "was vetted by a larger number of officials, including...the White House counsel's office and Vice President Cheney's office." According to Newsweek, the memo "was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and [Cheney counsel] David Addington." The memo included the opinion that laws prohibiting torture do "not apply to the President's detention and interrogation of enemy combatants." Further, the memo puts forth the opinion that the pain caused by an interrogation must include "injury such as death, organ failure, or serious impairment of body functions – in order to constitute torture." The methods outlined in the memo "provoked concerns within the CIA about possible violation of the federal torture law [and] also raised concerns at the FBI, where some agents knew of the techniques being used" overseas on high-level al Qaeda officials. [8/1/02 memo [PDF]; WP, 6/27/04; Newsweek, 6/21/04; NYT, 6/27/04]

A 1/25/02 memo written by White House Counsel Alberto Gonzales said "the war against terrorism is a new kind of war" and "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." The memo pushes to make al Qaeda and Taliban detainees exempt from the Geneva Conventions' provisions on the proper, legal treatment of prisoners. The administration has been adamant that prisoners at Guantanamo are not protected by the Geneva Conventions. [1/25/02 memo [PDF]; Newsweek, 5/24/04]

The 1/25/02 memo shows Alberto Gonzales was aware of the risk that ignoring the Geneva Conventions could create for the military. One concern expressed is that failing to apply the Geneva Conventions "could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries," which is what happened at Abu Ghraib. Secretary of State Colin Powell strongly warned against taking this decision, as did lawyers from the Judge Advocate General's Corps, or JAG. This week, a federal judge ruled that "President Bush had both overstepped his constitutional bounds and improperly brushed aside the Geneva Conventions" when he established military tribunals in Guantanamo Bay, Cuba, to try detainees as war criminals. [1/25/02 memo [PDF]; Bloomberg, 6/14/04; New York Times, 11/9/04]

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