Redefining Torture

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That month President Bush declared that U.S. soldiers would abide by the spirit of the Geneva Conventions but that neither Taliban nor al-Qaeda captives held in Guantanamo Bay would actually qualify as prisoners of war. The conclusion that al-Qaeda members were not subject to the treaty made sense to many international lawyers.

However, the Taliban did represent a nation state--one that was party to the conventions. Still, the Administration decided that, as John Yoo--a University of California law professor who while a Justice Department attorney wrote one of the primary memos--explained last week in a Los Angeles Times editorial, "the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war."

In mid-2002 government lawyers began crafting even bolder interpretations of anti-torture laws. A Justice Department memo in August advised the CIA that torturing al-Qaeda terrorists abroad "may be justified," the Washington Post reported last week. In December, Rumsfeld approved a list of 17 interrogation tactics for Guantanamo, including sleep deprivation and "stress" positions. Amid concerns that the tactics violated international law, Rumsfeld withdrew the list a month later and asked for a policy review. He issued a new list in April 2003 that is still in use. According to a former Pentagon official who worked on the review, the final list of approved techniques is less harsh than the original recommendations.

After the invasion of Iraq, rules governing interrogation of prisoners broke down as untrained soldiers tried to cope with thousands of detainees and the military blurred distinctions between resistance fighters and terrorists. A senior Pentagon official says the rules for interrogation in Iraq were "more aggressive than the ones at Guantanamo." Stress positions, sleep deprivation, the use of dogs to intimidate detainees--all violations of Geneva--were allowed in Iraq, though they had not been used at Guantanamo. At Abu Ghraib, detainees wore plastic bracelets printed with their ID number and the word terrorist, the Wall Street Journal reported.

As the Administration expanded the definition of terrorist, it contemplated ways to skirt long-observed prohibitions against torture. A March 2003 draft of a Defense Department report, leaked to the Wall Street Journal last week, argued that the President had the authority to approve almost any physical or psychological tactic, including torture, in the name of national security. Though Administration officials say they never authorized the use of torture, some members of Congress are furious that the U.S. even looked for ways to justify it. "It's just incredible," Republican Senator John McCain told TIME. "Why doesn't every nation in the world now have a green light to do everything it thinks is necessary to combat a 'terrorist threat'?"