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Pentagon Memo Undermines the U.S. Constitution 
Pentagon Show Memos Rumsfeld OK'd Interrogation Methods 

 Pentagon Memo Undermines US Constitution

Pentagon Memo Undermines the U.S. Constitution 
By Alia Malek 
The Toronto Daily Star Tuesday, June 22, 2004 

The telltale signs are there: the disregard and dismantling of 
international law; the evisceration of the US Constitution; the erosion of any 
goodwill toward America internationally, but especially in the Arab world; the 
bickering between the White House, the Pentagon and the Justice Department on 
the one hand, and the State Department on the other; the shortsighted vision of 
national security; the endangering of the lives of American soldiers on the 
front lines by hawks who have never seen combat; the legitimization of methods 
made notorious by dictators; the boundless arrogance. This is the bottom 
line of how the Bush administration is prosecuting its "war on terrorism," and 
recent revelations suggest things may be even worse: Lawyers at the Justice and 
Defense Departments have been drafting memos since at least 2002 exploring 
how international and domestic prohibitions against torture could be 
circumvented. This comes on top of other memos from the White House Counsel's office 
asserting that the Bush administration could ignore the Geneva Conventions in 
Afghanistan and Guant·namo Bay with regard to treatment of alleged members of the 
Taleban and Al-Qaeda who had been captured. Such measures reflect a more 
general attitude adopted by the administration since Sept. 11, 2001, embodied 
in the USA Patriot Act, the treatment of prisoners at Guant·namo, secret 
detentions and American behavior in Iraq. They also provide a backdrop to the 
scandal at Abu Ghraib and the lawsuits being filed against the contractors running 
interrogation operations there. In light of this, the memos raise the prospect 
that what happened at the prison was not about bad apples in the system, but 
about the way the system itself operated, the foundations for which were laid 
down by Justice and the Pentagon. So what is in the memos? The only one 
that has so far been made public is a draft report by a Pentagon-appointed 
working group, which is reportedly similar to a final report that Secretary of 
Defense Donald Rumsfeld has made classified and which draws heavily on another one 
authored by the Office of Legal Counsel at the Justice Department. The 
lengthy draft report outlines the relevant international and domestic laws 
forbidding torture and deconstructing legal issues regarding interrogations and 
imprisonment, such as definitions of pain, punishment and suffering. It depends on 
often-untested legal technicalities or vague national-security considerations 
to argue that the restrictions on torture are inapplicable in the war on 
terrorism. In the event that civilian or military personnel might be accused of 
torture, it also considers possible defenses. The major thrust of the memo is 
that the president's power to wage war is virtually unchecked, and that neither 
the judicial nor the legislative branches of government, let alone 
international law, can interfere. What makes this memo disturbing is how it uses law 
and legal reasoning in a dishonest fashion to undermine core principles of the 
American legal and political systems. This includes the Eighth Amendment's 
ban on cruel and unusual punishment, the Fifth Amendment's protection of due 
process, and the system of checks and balances built into the constitution to 
prevent any one branch of government from becoming dominant. These values 
have been part of the US since its inception. Moreover, they are the basis for 
other US statutes such as the federal anti-torture statue enacted in 1994, which 
provides for the prosecution of an American national or anyone present in the 
US who, while outside the country, commits or attempts to commit torture. A 
person found guilty under the act can even receive the death penalty if the 
violence results in a victim's death. By extending the jurisdiction of the 
prohibition on torture in such a way, but also by ratifying major international 
treaties forbidding torture under any circumstance and by regularly issuing 
statements against torture, the US has shown a commitment to the value that 
torture is absolutely forbidden and prosecutable. The Pentagon memo argues, in 
essence, that there are loopholes in this ban and, therefore, loopholes in 
American values. The memo does this by stretching definitions of pain and 
suffering, for example, and by making faulty arguments, such as asserting that 
certain constitutional protections do not apply because when they were affirmed in 
the jurisprudence (especially that of the Supreme Court), they were not 
applied, for example, to "enemy alien belligerents." However, this is absurd and 
emphasizes the procedural over the substantive. Of course the right of enemy 
alien belligerents has not been established in American law, since it is the Bush 
administration that coined that questionable term. And while, yes, the right 
of such belligerents has not been specifically established, that of the 
illegality of torture has. But even this is debatable according to this Pentagon 
memo. For example, the document asserts that the only persons who can benefit 
from Eighth Amendment protections are those who have already been convicted, 
because "cruel and unusual" refers to the punishment received after conviction. 
Therefore, according to the memo, cruel and unusual behavior has to be 
inflicted as punishment (not for example as an interrogation technique) to involve 
the Eighth Amendment. A US founding father just kicked over a tombstone rolling 
in his grave. The memo also considers whether torture is an acceptable 
interrogation method because of necessity; particularly in the case of a 
"ticking time bomb" scenario, where a captured individual might possesses information 
that could defuse a plot to kill many. This is, of course, the most 
emotionally persuasive argument and indeed the one resonating most with Americans, 
including myself. But, the fact remains that those held in custody both in 
Iraq and at Guant·namo Bay have been held there for months, if not years. They, 
arguably, no longer possess information on imminent threats. Moreover, parts of 
the Pentagon memo apparently written by less ideological military attorneys 
quote military field manuals that assert "experience revealed that the use of 
force was unnecessary to gain cooperation and was a poor interrogation 
technique, given that its use produced unreliable information, damaged future 
interrogations and induced those being interrogated to offer information viewed as 
expected in order to prevent the use of force." With threats not obviously 
imminent and the effectiveness of torture dismissed by those in the field, and 
given that international laws on torture hold that there is no acceptable 
circumstance for its use, there are, at the least, questionable grounds on which to 
make an argument in favor of the necessity of torture. The US legal 
system is not without its flaws, but it has survived and evolved because it is 
rooted in ideals embodied in the constitution, which has been gradually amended to 
reign in the excesses of the US government and people. The executive branch, 
as the branch responsible for enforcing American laws, should protect the 
document, not render it meaningless through grotesque dissections. If the 
United States can indulge in an a-la-carte approach to human rights protections, 
what can we expect from the rest of the world? Alia Malek is a human rights 
attorney and served in the US Justice Department's Civil Rights Division.,0,6959752.story">Go 
to Original Pentagon to Show Memos 
Rumsfeld OK'd Interrogation Methods 
By Craig Gordon 
Newsday Tuesday 22 June 2004 The Pentagon plans to release 
declassified memos as early as today showing that Defense Secretary Donald Rumsfeld 
approved harsh interrogation techniques at the military prison at Guant·namo 
Bay, including forcing detainees to stand for as long as four hours straight, a 
senior defense official said last night. Critics of the Bush 
administration say the use of uncomfortable "stress positions" and other techniques amount 
to torture. The defense officials denied a CNN report that Rumsfeld also 
approved a technique known as water-boarding, in which a prisoner is held 
under water until he believes he might drown. CNN reported that the technique was 
approved in October 2002 but that the order was later rescinded before it was 
used, after complaints from Pentagon lawyers. Also yesterday, a scheduled 
pretrial hearing today for Pfc. Lynndie England, accused of mistreating Iraqi 
prisoners seen in several of the Abu Ghraib prison photos, was postponed amid 
reports that her lawyers are discussing a possible plea bargain. The hearing 
was rescheduled for next month. In Baghdad, meanwhile, lawyers for two U.S. 
military defendants in the Abu Ghraib scandal won the right to question top 
U.S. generals to bolster arguments their clients were following lawful orders 
in their treatment of inmates. The order, issued by Col. James Pohl, a 
military judge, at pretrial hearings compels Lt. Gen. Ricardo Sanchez, the top 
U.S. commander in Iraq, and Gen. John Abizaid, chief of the U.S. Central Command, 
to give depositions. The defense also will have access to Maj. Gen. Geoffrey 
Miller, who was in charge of the Guant·namo Bay prison camp and now runs U.S. 
detention facilities in Iraq. Questioning senior officers who run the Iraq 
war could shed light on interrogation techniques and help determine how far 
responsibility for the abuse extends up the chain of command. However, Pohl 
rejected motions by counsel for Sgt. Javal Davis and Spc. Charles Graner to 
compel testimony from Rumsfeld. 

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