THE BUSH administration has released reams of documents seeking to prove that it bears no responsibility for the American atrocities at Abu Ghraib. President Bush himself says: "We don't condone torture." But it sounds a little like saying that it depends on what the meaning of is is.
No one doubts the president when he says "I have never ordered torture." No one is suggesting that there was ever a directed policy from the White House ordering Abu Ghraib-style abuse. The question is, did all the administration's questioning of how torture might be redefined, the bar lowered, and the Geneva Conventions circumvented filter down to the operational level?
To that charge White House counsel Alberto Gonzales says: "We categorically reject any connection." But this ignores his own January 2002 letter to the president saying that 9/11 renders obsolete "Geneva's strict limitations on questioning of enemy prisoners, and renders quaint some of its provisions."
When you have the White House counsel dismissing time-tested conventions agreed to by all civilized nations as "quaint," as if they were nothing more than something Miss Manners would say about finger bowls, then you have a formula for big trouble down the line. Secretary of State Colin Powell recognized this when he reacted to the memo by saying it would "reverse over a century of US policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops."
A series of Justice Department memorandums written late in 2001 provided a legal framework for the argument that prisoners taken in Afghanistan did not have to be treated under Geneva Convention rules, and that American officials who abused prisoners under Geneva rules would not, therefore, be governed by the provisions of the 1966 Federal War Crimes Act.
A 100-page memo prepared for Defense Secretary Donald Rumsfeld argued that the president, as commander in chief, could override domestic laws and international treaties forbidding torture. According to The Wall Street Journal, that memo gave the legal underpinnings to the contention that the president has the authority "to approve almost any physical or psychological action during interrogation, up to and including torture." This despite the fact that the United States ratified the United Nations Convention Against Torture which states categorically that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture."
Another 50-page memo from the Justice Department sent to the White House in August of 2002 clearly argued that the internationally accepted definition of torture be more loosely defined as only "pain equivalent in intensity to the pain accompanying serious physical injury such as organ failure."
Now the administration's position is that this and other documents are irrelevant because no one in the administration had ever specifically asked for the legal authority to torture captives. The entire Justice Department memo, officials said, would now be rewritten.
But the idea that all these memos and legal opinions on how the United States might rewrite, redefine, and reinterpret the rules on torture just filtered up without being asked for is patently absurd. If the underlings who put in a great deal of time and thought on these memos had not believed that their masters wanted to lower the bar on torture they would not have wasted their time on legal opinions.
Gonzales contends that, yes, there were internal debates that raised some of the legal issues involving interrogation techniques. Yes, some of them were controversial. But the principles settled on by the president were "more narrowly tailored" than some of the options offered. One would certainly hope so. But Gonzales's contention that these discussions on pushing the envelope on what torture might or might not be were simply "abstract" and never affected soldiers in the field is a bit more problematical.
Documents also purport to show that Defense Secretary Donald Rumsfeld did not approve all of the abusive interrogation techniques that his subordinates recommended and changed his mind about some that he did. But the techniques he did approve of went beyond what the Army manual of behavior toward prisoners allowed. In the real world, when you declare that "a quick glancing slap to the fleshy party of the cheek or stomach" can be useful "as shock measures," as Rumsfeld's working group did, you can be absolutely sure that when you get down into the prisons themselves, the quick glancing slaps will become hard and punishing blows. If you allow the use of dogs to frighten prisoners, you can be sure that prisoners are going to get bitten.
The administration should have known that if you set a tone in which Geneva Conventions can be circumvented you can be absolutely sure that they will be, with or without a direct order from the top.
H.D.S. Greenway's column appears regularly in the Globe.