Document Dump Deception

In a transparent effort to mute criticism about the Abu Ghraib prison abuse scandal -- and broader concerns about the treatment of prisoners by the United States worldwide -- the administration made public a selection of documents related to the treatment of detainees. Among the documents released: a 50-page memorandum written on 8/1/02 by the Justice Department's Office of Legal Counsel. Just two weeks ago Attorney General John Ashcroft told Congress that he could not discuss or release that document because "to provide this kind of information would impair the ability of advice-giving in the executive branch to be candid, forthright, thorough and accurate at all times, and ...impair our ability to conduct ourselves in the executive branch." Ashcroft also said he couldn't release the document because "we are at war. And for us to begin to discuss all the legal ramifications of the war is not in our best interest and it has never been in times of war." The release of this document just two weeks later means either: 1) Ashcroft misled Congress about the implications of releasing the documents, 2) the administration impaired the functioning of the executive branch and war efforts for political purposes, or 3) Ashcroft has no idea what he is talking about. (Add your name to the American Progress petition to remove Ashcroft from office.)

Bush administration officials -- including White House Counsel Alberto Gonzales -- touted a 2/7/02 memo signed by Bush as demonstrating his commitment to the humane treatment of prisoners. But even that memo provides no such guarantees. In the memo Bush says that detainees should be treated consistent with the Geneva conventions only "to the extent appropriate and consistent with military necessity." The "military necessity" exception is so broad and vague it effectively allows the protections of the Geneva convention to be ignored at will. In response, just last week, the Senate adopted an anti-torture amendment by Sen. Richard Durbin (D-IL).

The administration's document dump was notable for what it didn't include. For example, according to Sen. Patrick Leahy it included "only 3 of the 23 documents that Members of the Senate Judiciary Committee requested and tried to subpoena last week, and of those 3 documents, 2 were already available worldwide on the Internet." Although the administration released a February 2002 memo by President Bush addressing the treatment of prisoners it didn't address the critical question: "Did the President sign any directive regarding the treatment or interrogation of detainees after February 7, 2002?" And although the last document released was dated April 16, 2003 the worst abuses are known to have occurred months later. Leahy has introduced a motion that would require the administration to fully disclose all relevant documents.

By Gonzales's own admission, none of the documents address "CIA activities." In Tuesday's press conference a questioner pointed out interrogators included "agency [CIA] people along with military people, and isn't that just a convenient loophole to allow one person to use certain techniques that are prohibited by the other?" It is widely believed that interrogation tactics used by the CIA are the most aggressive.

While the administration officials may have hoped that the newly released documents would clear them of blame in the prisoner abuse scandal, the material instead demonstrates the culpability of Defense Secretary Donald Rumsfeld. Undermining Rumsfeld's earlier claim that he was "blindsided" by the abuse at Abu Ghraib, the documents show that in December 2002, he authorized interrogation techniques for prisoners at Guantanamo Bay including the use of dogs for intimidation, the removal of clothing, the hooding of prisoners, and the use of "non-injurious physical contact." This approval was rescinded in January 2003, and soon replaced by an April directive which, under some conditions, allowed for changes in diet, reversal of sleep cycles, and isolation. Rumsfeld made this last decision, reports the Washington Post, despite a warning from a Pentagon working group that there were "possible adverse effects on U.S. Armed Forces culture and self-image, which at times in the past may have suffered due to perceived law of war violations."

The administration took the extraordinary step of repudiating an 8/1/02 memo by then-assistant attorney general Jay S. Bybee. The memo argued "there is significant range of acts that, though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture" because they don't cause physical injury equivalent to organ failure. Even with that stipulation, he concluded that "under the current circumstances, necessity or self-defense may justify interrogation methods that might" qualify as torture. In disavowing the memo, a senior Justice Department official called it "overbroad and irrelevant" and the department is now rewriting the memo. But the administration's displeasure with the Bybee memo is a recent phenomena. After he wrote the memo Bybee was rewarded by Bush with a lifetime term on a federal appellate court.

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