Richard Norton-Taylor Saturday June 12, 2004 The Guardian
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 Guantánamo, 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.
Stafford-Smith is acting for some of the Guantánamo 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".
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".
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."
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.
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."
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.
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.
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.
The Pentagon's lawyers describe Guantánamo 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 Guantánamo Bay.
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 Guantánamo 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.
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 Guantánamo 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.
"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.
· Richard Norton-Taylor is the Guardian's security affairs editor
richard.norton-taylor at guardian.co.uk