June 28, 2004 | Wall Street Journal

Law and Torture

Co-Authored by Ruth Wedgwood

In the wake of the Abu Ghraib scandal, it is clear that maintaining humanitarian standards for those we take prisoner is central to the good name of the United States. Interrogation methods for combatants and detainees must be framed in light of the applicable law, even in the war against al Qaeda, and a president needs to know where the red lines are. In a democratic country bounded by religious faith, there is no room for unbounded power over any human being.

Yet the recently released memos delivered by the Justice Department's Office of Legal Counsel to the White House in January and August 2002 — titled “Application of Treaties and Laws to al Qaeda and Taliban Detainees” and “Standards of Conduct for Interrogation” — do not give an adequate account of the law. One cannot dismiss them as mere academic musings, for they served as the starting point for other government deliberations on appropriate standards for detention and interrogation.

To be sure, there were solid and persuasive reasons to conclude that al Qaeda and the Taliban were not lawful combatants under the standards of war and were thus not entitled to the entire range of privileges under the Geneva Conventions of 1949, fitted to international wars between states. This was the decision taken by the president in February 2002. So what then is amiss?

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The answer lies in the memos' inadequate consideration of the ground-level standards that apply whenever combatants or criminals are captured, regardless of their personal legal status. We do not live in the 14th century, when an outlaw was treated like a wild beast. The president's need for wise counsel is not well served by arguments that bend and twist to avoid any legal restrictions.

Most troubling is the narrow account of the ban on torture. The United States ratified the Convention Against Torture in 1994, and passed a criminal statute to bar Americans from participating in official torture anywhere in the world. The torture treaty applies even under “a state of war or a threat of war,” by the plain language of its Article 2, and the United States did not object to this point.

Torture is defined by this treaty as the intentional infliction of “severe pain or suffering, whether physical or mental . . . on a person for such purposes as obtaining from him or a third person information or a confession.” Shooting someone on the battlefield in order to stop his advance is legitimate. But attacking someone with a knife during interrogation would be torture, even if the objective is solely to obtain information.

Curiously, the OLC opinion bends over backwards to limit the definition of “severe pain or suffering” in a way that only Savoranola could love. In a non-Hippocratic application of hospital emergency medicine rules, the OLC explains that only “death, organ failure, or serious impairment of body functions” should serve as the measure of “severe pain.”

This diminished definition of the crime of torture will be quoted back at the United States for the next several decades. It could be misused by al Qaeda defendants in the military commission trials and by Saddam's henchmen. It does not serve America's interest in a world in which dictators so commonly abuse their people and quash their political opponents.

The OLC memos also brush past Article 16 of the Torture Convention, which requires each state to prevent the lesser acts of “cruel, inhuman or degrading treatment or punishment” within its jurisdiction. It is true that this part of the treaty was not translated into federal criminal law. But it is still a legal commitment to which we willingly have acceded. The United States noted in a treaty reservation that this safeguard is to be measured by the Constitution's ban on cruel or unusual punishment, and extrajudicial abuse that “shocks the conscience.” This is a standard we can live with, even in the war against catastrophic terrorism. We are not legally free to choose cruel techniques just because they fall short of torture.

The memos also dismiss common Article 3 of the Geneva Conventions — a rock-bottom standard designed for armed conflicts “not of an international character” that occur “in the territory of one of the High Contracting Parties.” This is a catch-all provision, designed for unlawful combatants who do not qualify as prisoners of war. It was a standard designed for asymmetric warfare. Insurgents do not have a protected right to make war. They do not sign humanitarian treaties. and more often than not, they fail to give quarter, killing prisoners summarily. Yet even for such blackguards, “at any time and in any place whatsoever,” all are entitled to protection against “outrages upon personal dignity, in particular, humiliating and degrading treatment,” as well as “mutilation, cruel treatment and torture.” These are grave breaches of the treaty and are classified as war crimes.

Spurning the case law of the American-backed International Criminal Tribunal for the former Yugoslavia, the Justice Department lawyers assert that Article 3 could only have been intended for the Spanish or Chinese civil wars, not a struggle for control of Afghanistan. This is a captious conclusion. and in any event, common Article 3 is taken by most law of war experts to restate the minimum standards of the customary law traditionally applicable to armed conflicts of any kind.

Separation of powers was also given short shrift in the lawyers' memos. In the perennial debates between Alexander Hamilton and Thomas Jefferson over the nature of executive power, many of us do think that Hamilton gave the better account of the necessary link between foreign affairs and the Executive's capacity for quick action. The president is the commander-in-chief, and this is a broad power.

But the Congress also enjoys enumerated and coordinate powers under the U.S. Constitution. Article I, Section 8 allocates to Congress the power to “make rules concerning captures on land and water” and the power “to make rules for the government and regulation of the land and naval forces” — as well as the crucial power to “define and punish . . . offences against the law of nations.”

It is thus peculiar to say that a criminal statute prohibiting acts “under the color of law” must have silently intended to exempt every executive branch employee, even for the crime of torture. Indeed, the torture treaty ratified by the United States covers only official acts — “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” and it is imprudent, at the least, to suppose that Congress's intent is irrelevant — that the president's power to conduct war is absolute, even as to war crimes. A president, to be sure, always retains the pardon power under the Constitution. He retains the power of prosecutorial discretion. But he does not have, and would not wish, the power to dismantle the law.

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Last week, it should be noted, the Justice Department took the unprecedented step of rescinding the August 2002 foundational OLC opinion “Standards of Conduct for Interrogation.” and it has pledged to review other OLC opinions dealing with the treatment and interrogation of captured combatants. This is to the good.

In its review, Justice may wish to broaden the process of consultation — adapting, if you will, Goldwater-Nichols principles to the challenge of lawyering in wartime. On issues so crucial to America's moral stature, as well as American safety, it is important that a president be informed of variant views from other responsible quarters of the State Department, the Defense Department, including the Joint Chiefs of Staff, and the CIA. It is important that the president know when other countries will disagree with our views. One might even consult quietly with committees of the Congress. This is not the kind of law that is done by pure deduction from the Federalist Papers.

The Office of Legal Counsel has traditionally claimed the last word, at least on constitutional law, within the Executive Branch. But even the most capable lawyers cannot countermand the president's solemn promise of humane treatment for all persons captured in war. Nor can they override the president's proclamation of June 26, 2003. President Bush declared that “the United States is committed to the world-wide elimination of torture” and called for all governments to join with America to prohibit “all acts of torture” and “prevent other cruel and unusual punishment.”

The words of a president should not be lightly dismissed.

Ms. Wedgwood is the Edward B. Burling Professor of International Law and Diplomacy at Johns Hopkins School of Advanced International Studies. Mr. Woolsey, director of Central Intelligence from 1993-95 and former Washington attorney, is vice president of Booz Allen Hamilton.