- On the stage of a London theatre on Thursday night, a
lawyer held up an official US document, classified by Donald Rumsfeld as
"secret" and "not for foreign eyes". Considering its
contents, the document has attracted remarkably little attention here since
it was leaked this week to the US media. Its significance was raised by
Clive Stafford-Smith, director of the US-based group Justice in Exile,
at the end of a performance of Guantanamo, the Tricycle Theatre's moving
indictment of how the US rounded up detainees - or "unlawful combatants",
as it calls them - and sent them to the US base in Cuba.
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- Stafford-Smith is acting for some of the Guantanamo prisoners,
challenging the conditions in which they are being held. The US supreme
court is expected to give its ruling before the end of this month. Rumsfeld's
classified document, drawn up by US government lawyers, bears directly
on the case. It argues that American interrogators can ignore US domestic
law banning torture, because it would restrict the president's powers in
his "war on terror".
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- The document, drawn up last year, says that "criminal
statutes are not read as infringing on the president's ultimate authority"
over "the conduct of war". It adds: "In order to respect
the president's inherent constitutional authority to manage a military
campaign, [the prohibition of torture] must be construed as inapplicable
to interrogators undertaken pursuant to his commander-in-chief authority".
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- Constitutionally, America's founding fathers entrusted
the president with the primary responsibility, and therefore the power,
to ensure the security of the US in situations of "grave and unforeseen
emergencies". It goes on: "Numerous presidents have ordered the
capture, detention, and questioning of enemy combatants during virtually
every major conflict in the nation's history, including recent conflicts
in Korea, Vietnam and the Persian Gulf". And it continues: "Congress
can no more interfere with the president's conduct of the interrogation
of enemy combatants than it can dictate strategy or tactical decisions
on the battlefield."
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- The lengths to which Rumsfeld's lawyers are prepared
to go to protect the freedom of the president's agents and place them above
the law are reflected in other passages.
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- The document states that US interrogators can use harsh
measures as long as they were not "specifically intended" to
inflict "severe mental pain or suffering". In another passage,
it says that even if an interrogator "knows that severe pain will
result from his actions, if causing harm is not his objective, he lacks
the requisite specific intent."
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- Interrogators can appeal to the defence of "necessity"
- in other words, they can argue that torturing individuals is needed to
prevent greater harm or evil such as threats to the safety of the nation.
And the concept of "self-defence" is given the widest possible
interpretation, referring to the nation rather than any individual.
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- The document, on the face of it, is a charter allowing
the US president to abuse human rights and ignore domestic as well as international
law.
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- Stafford-Smith yesterday pointed to what he called its
most outrageous argument - namely, that domestic law does not apply to
actions inside the US. Torture can be committed inside the US.
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- The Pentagon's lawyers describe Guantanamo Bay as "included
within the definition of the special maritime and territorial jurisdiction
of the US and accordingly is within the US". They add: "Thus,
the torture statute does not apply to the conduct of US personnel"
at Guantanamo Bay.
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- The apparent non sequitur is based on the argument that
the statute is confined to actions outside the US - in other words, that
torture is not banned within the US. Yet this directly contradicts claims
made by other US government lawyers who insist Guantanamo Bay detainees
have no rights under US law. The naval base, they insist, is not US sovereign
territory so the detainees do not have such basic rights as access to a
fair trial.
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- The issue is now before the US supreme court. If the
detainees win this argument, it could lead the way to at least some kind
of judicial process, including the testing of evidence. But whatever Guantanamo
Bay's territorial status, according to the Rumsfeld document, detainees
there and anywhere else can be tortured at will in Bush's global "war"
on terrorism.
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- "The authorisation I issued was that anything we
did would conform to US laws and would be consistent with international
treaty obligations," Bush said this week. Little comfort there.
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- - Richard Norton-Taylor is the Guardian's security affairs
editor
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- Guardian Unlimited © Guardian Newspapers Limited
2004 http://www.guardian.co.uk/usa/story/0,12271,1237239,00.html
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