The American Bar Association (ABA) this week added its voice to appeals for independent investigation of the abuse and torture by U.S. soldiers of detainees in Iraq, Afghanistan and elsewhere in the Bush administration’s "war on terrorism."
Adopting by an overwhelming margin a proposed resolution during its annual convention in Atlanta earlier this week, the nation’s biggest law group also condemned the government’s treatment of detainees and called on the administration to "comply fully" with the U.S. Constitution and international laws and conventions ratified by the United States that outlaw torture.
"The use of torture and cruel, inhuman and degrading treatment by U.S. personnel in the interrogation of prisoners captured in the Afghanistan and Iraq conflicts has brought shame on the nation and undermined our standing in the world," according to a report that accompanied the resolution.
"It is incumbent upon this organization, which makes the rule of law its touchstone, to urge the U.S. government to stop the torture and abuse of detainees, investigate violations of law, and prosecute those who committed, authorized, or condoned those violations, and assure that detention and interrogation practices adhere faithfully to the Constitution, laws and treaties of the United States and related customary law," it added.
The resolution itself noted that the public has still not been adequately informed about the extent of prisoner abuse by U.S. personnel. It noted that while the administration has so far insisted that only a few soldiers, including the seven who face courts martial over abuses committed last fall at Abu Ghraib prison near Baghdad, were responsible, a sufficient number of reports of similar abuses had been recorded in other detention facilities to indicate "a widespread pattern of abusive detention methods."
"We do not yet know who is being detained, where they are, what are the conditions of their detention and interrogation," the resolution stated.
Several attorneys spoke out against the resolution’s adoption. David Rivkin, Jr., a former Justice Department lawyer associated with the right-wing Washington Legal Foundation, charged that the resolution was vague and amounted to "grandstanding" by the ABA, whose membership includes some 400,000 attorneys nationwide. He also insisted that certain interrogation techniques that had been approved by senior Pentagon officials under limited circumstances, such as sleep and sensory deprivation, had proven effective in gaining information.
Since the notorious photos of abuses at Abu Ghraib prison were first broadcast in late April, human rights groups, including Amnesty International, Human Rights First, and Human Rights Watch (HRW), as well as mostly Democratic members in Congress, have called for the creation of a bipartisan and independent commission to investigate. But the administration has so far rejected that course, leaving it to half a dozen ongoing inquiries all conducted under the authority of the Pentagon to play themselves out.
It has also insisted that a series of memos that dealt with the question of torture prepared by political appointees at the Justice Department, the Pentagon, and the White House in 2002 and 2003 were never passed down the chain of command and played no role in the abuses that have been reported to date. Those memos, however, have created a storm of controversy within the legal community.
The memos, which dealt with the war powers of the president, torture, and the application of U.S. and international legal bans on torture, have been blamed by rights groups for contributing to a sense throughout the government and the military that the "war on terrorism" was a different kind of conflict, one in which normal rules, such as treatment of detainees as required by the Geneva Conventions, did not necessarily apply.
One Pentagon memorandum, for example, asserted that the president, in his role as commander-in-chief, may choose to ignore laws, treaties or even the Constitution itself if they interfered with his ability to prosecute the war as he saw fit.
Another Justice Department memo asserted that the president has the authority to approve the infliction of extreme physical distress by redefining "torture" as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
Similarly, mental pain and suffering would not amount to torture, in the memo-writer’s view, unless "it results in significant psychological harm of significant duration, e.g., lasting for months or even years."
Finally, memos by Justice and Defense Department political appointees presented a series of arguments that they claimed could be used as defenses against U.S. torture statutes and the UN Convention Against Torture, which has been ratified by the United States.
According to published reports, most career attorneys in the Justice, Defense and State Departments strongly opposed the positions taken in the memos but were overruled by senior political appointees.
On the eve of the ABA convention, however, 130 prominent jurists, including 12 former federal judges and former Federal Bureau of Investigation director William Sessions, released a blistering statement that the lawyers who prepared the statement had failed in their "high obligation to defend the Constitution."
"The most senior lawyers in the Department of Justice, the White House, Department of Defense and the vice president’s office sought to justify actions that violate the most basic rights of all human beings," according to the statement’s signers, who also included eight past ABA presidents.
Among those who have been named in published accounts as responsible for the memos were former Assistant Attorney General Jay Bybee, who has since been confirmed as a federal judge; the Pentagon’s General Counsel, William Haynes II, who has been nominated for a federal judgeship; Undersecretary of Defense for Policy Douglas Feith; Vice President Dick Cheney’s counsel, David Addington; the former head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith; and Joyh Yoo, who was also with the OLC.
"The lawyers who prepared and approved these memoranda have failed to meet their professional obligations," the statement, which was also signed by former Attorney General Nicholas Katzenbach and the heads of several U.S.-based international human rights groups, asserted.
"They have counseled individuals to ignore the law and offered arguments to minimize their exposure to sanction or liability for doing so," it noted, adding that in several cases the memos ignored well-established precedents, including Supreme Court decisions, that directly contradicted their positions a particularly serious charge against attorneys at the OLC, whose role is to provide attorneys general with opinions that are firmly grounded in accepted law.
The ABA resolution suggested that these memos may indeed have played some role in the actual abuse despite the administration’s denial. "Executive branch memoranda were developed to justify interrogation procedures that are in conflict with long-held interpretations and understandings of the reach of treaties and laws governing treatment of detainees," it said.
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