The memo said "necessity and self-defense could provide justifications that would eliminate any criminal liability" for torture

WASHINGTON, June 8 (IslamOnline.net) – The Justice Department had advised the Pentagon that torturing detainees outside the U.S. "may be justified", and that anti-torture international laws "may be unconstitutional" in interrogations related to the so-called "war on terror", a leading American newspaper unveiled Tuesday, June 8.

The Washington Post said a newly obtained memo from the Justice Department's office of legal counsel drafted in August 2002 argued torture could be justified as a measure to prevent further attacks on the country.

If a U.S. government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the Al-Qaeda terrorist network," it claimed.

The memo added that arguments on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later.

Government officials familiar with the document said the memo was offered after CIA began detaining and interrogating suspected Al-Qaeda leaders in Afghanistan and elsewhere.

In the memo, addressed to White House Counsel Alberto R. Gonzales, the Justice Department defined torture in a much narrower way, for example, than does the U.S. Army, which has historically carried out most wartime interrogations, said the Post.

In the Justice Department's view, inflicting moderate or fleeting pain does not necessarily constitute torture.

The memo seems to contradict earlier assumption that U.S. government personnel would never be permitted to torture captives, said the American daily.

Interrogation Techniques

The legal document, for example, included the interpretation that "it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture."

It named seven techniques that courts have considered torture, including severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person.

"While we cannot say with certainty that acts falling short of these seven would not constitute torture," the memo advised, "we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law."

It argued that an interrogator could show he acted in good faith by "taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience" to show he/she did not intend to cause severe mental pain and that the conduct, therefore, "would not amount to the acts prohibited by the statute."

New Memo

"It is by leaps and bounds the worst thing I've seen since this whole Abu Ghraib scandal broke," said Malinowski

The legal reasoning in the 2002 memo, which covered treatment of Al-Qaeda suspects, was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Department's detention center at Guantanamo Bay, Cuba.

At that time, Defense Secretary Donald Rumsfeld had asked the lawyers to examine the logistical, policy and legal issues associated with interrogation techniques, said the Post.

The Pentagon lawyers said that "in order to respect the President's inherent constitutional authority to manage a military campaign . . . [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority."

A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in the world.

The Pentagon lawyers said the anti-torture law did apply to U.S. military interrogations that occurred outside U.S. "maritime and territorial jurisdiction," such as in Iraq or Afghanistan.

The Pentagon had earlier fired a team of uniformed military lawyers hired to defend the detainees, after protesting the unfair measures taken against their clients in Guantanamo. 

But the report said both Congress and the Justice Department would have difficulty enforcing the law if U.S. military personnel could be shown to be acting as a result of presidential orders.

Worst Thing

Human rights groups expressed outrage over the Justice Department's legal reasoning.

"It is by leaps and bounds the worst thing I've seen since this whole Abu Ghraib scandal broke," Tom Malinowski of Human Rights Watch, was quoted as saying by the Post.

The scandal exploded onto the world stage on April 29 after the CBS news network published several graphic photos  of Iraqi detainees tortured and sexually abused by U.S. soldiers.

"It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations," he said.

At the time, the Justice Department's legal analysis, however, shocked some of the military lawyers who were involved in crafting the new guidelines, senior defense officials and military lawyers.

"It's really unprecedented. For almost 30 years we've taught the Geneva Convention one way," a senior military attorney told the Post.

"Once you start telling people it's okay to break the law, there's no telling where they might stop."

The memos revelation came few days after Amnesty International said Washington's so-called war on terror and its invasion of Iraq have led to the worst human rights abuses in 50 years.

A U.S. soldier making her presence in most of the Iraqi abuse photos said she was "instructed" by her commanders to pose for photographs with naked Iraqi detainees.

The American New Yorker magazine dropped a bombshell Sunday, May 16, saying the torture was okayed by Rumsfeld.