WASHINGTON—For the past two years, the State Department has condemned harsh interrogation techniques by other governments as torture and abuse, even as Bush administration lawyers argued that such techniques were legal when used by the United States in the war on terrorism.
U.S. government human rights monitors criticized Burma, Egypt, Pakistan and at least 15 other countries for using such tactics as sleep and food deprivation, stripping and hooding of detainees and prolonged isolation, a review of State Department reports shows.
But a Justice Department lawyer argued in a 50-page memo to the White House in August 2002 that some of the same techniques were legal because they fell short of torture. The argument was repeated in a Defense Department memo several months later.
What the U.S. government considers to be torture or abusive treatment is at the foundation of a controversy that began as a probe into the treatment of prisoners at Iraq's Abu Ghraib prison but has grown into an examination of how prisoners were treated in Afghanistan and at the U.S. prison camp at Guantanamo Bay, Cuba.
The Justice Department memo, written by then Assistant Attorney General Jay Bybee, drew a sharp distinction between torture, "an egregious, extreme act," and the more vague "cruel, inhuman or degrading treatment" of captives.
Bybee, now a federal judge in California, concluded that CIA and military interrogators could legally use a range of coercive techniques that he argued fell short of torture, and that the president's wartime powers overrode any criminal laws against torture and mistreatment. Attorney Gen John Ashcroft has refused to make the memo public, although it has leaked to the news media.
The United States has acknowledged the use of "stress and duress" techniques, including sensory deprivation and prolonged isolation, against detainees in Afghanistan and Guantanamo in an effort to uncover terrorist plots.
But in a long series of annual reports, including one released in February, the U.S. government criticized many of those same techniques. The reports make little distinction between torture and more general mistreatment and condemn both.
Among tactics criticized: "stripping and hooding" detainees in Egypt, prolonged periods of isolation in China, sleep deprivation in Iran, and prolonged periods in uncomfortable positions in Burma. "Common torture methods" in Pakistan included sleep deprivation and public humiliation, the State Department found.
The White House has said that American troops have always been under orders to follow U.S. laws and international treaties banning torture, though it is not clear what role the Justice Department memo played in interpreting those laws. Bush told reporters last week that he couldn't remember whether he had read it.
"The president's guidance has been crystal clear from the beginning," White House spokeswoman Jeanie Mamo said Tuesday. "Whatever is done with respect to detainees must be within U.S. law and consistent with international treaty obligations. He has not authorized and does not condone torture."
But David Scheffer, ambassador for war crimes under former President Bill Clinton, said the 2002 memo would have carried "great weight" inside the government because it came from the Office of Legal Counsel.
The memo concluded that torture, under U.S. criminal law and treaty obligations, "requires that severe pain and suffering must be inflicted with specific intent," and that acts of mental torture "must cause some lasting, though not necessarily permanent, damage."
The memo also advised that the international Convention Against Torture, which the U.S. ratified, "makes clear that torture is at the farthest end of impermissible actions, and that it is distinct and separate from the lower level of `cruel, inhuman or degrading treatment.'"
But Scheffer said that a section of the convention prohibiting "cruel and inhuman treatment," has become part of "customary law" that was recognized by U.S. officials starting in the Reagan administration.
"What they're now saying (in the memo) is that near-torture—or, almost torture but not quite—is permissible," Scheffer said. "It's a dangerous, slippery slope."
State Department human rights reports make no similar distinction. The sections reporting on sleep deprivation, hooding and other similar techniques appear under the heading "Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment."
In his memo, Bybee cites principles of necessity and self-defense as justifying the use of harsh interrogation tactics, a position administration supporters say is justified in the wake of the Sept. 11, 2001 terrorist attacks.
"Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives," he concluded in the memo.
But even as Bybee was promoting that position, the State Department offered no similar justification in its human rights reports.
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(Davies reports for The Miami Herald.)
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(c) 2004, Knight Ridder/Tribune Information Services.
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