Ashcroft Grilled Over Memos About Torture

U.S. Atty. Gen. John Ashcroft and his congressional critics clashed Tuesday about whether Justice Department legal opinions may have contributed to abuse -- or even torture -- of prisoners of war or other U.S. detainees.

In a three-hour grilling that included threats of holding the attorney general in contempt of Congress for refusing to turn over information, Ashcroft was questioned about internal Justice Department memoranda from 2002 saying that, in interrogating Al Qaeda suspects, the U.S. was not necessarily bound by international treaties and other laws against torture.

The memos’ authors indicated that they thought that the executive power of the president during wartime trumped anti-torture law.

Whether the memos influenced U.S. policy and interrogations was unclear Tuesday, although the reasoning of Justice Department lawyers was reflected in a Pentagon analysis last year covering treatment of detainees at the U.S. naval base at Guantanamo Bay, Cuba. Pentagon officials have said that their rules for interrogating prisoners there, outlined in a separate document, comported with international law.

In testimony before the Senate Judiciary Committee, Ashcroft sought to downplay the effect of the memos, but he refused to discuss their substance other than to say that President Bush had never embraced the views of the Justice Department attorneys who wrote them.

“There is no presidential order immunizing torture,” he said, adding that Bush had said that Al Qaeda captives should be treated in a manner consistent with the Geneva Convention. He declined to say whether Bush had issued any order or directive regarding interrogations.

“I condemn torture,” Ashcroft said. “I don’t think it’s productive, let alone justified.”

He noted that the department was investigating a number of cases of alleged abuses, involving prisoners of war or detainees, that might be prosecuted under federal anti-torture law.

He also said a special task force to handle abuse cases had been established by the U.S. Attorney’s office in Alexandria, Va., which has been overseeing much of the department’s anti-terrorism effort.

But the appearance of the memos in press reports -- and Ashcroft’s refusal to turn the memos over on grounds that doing so would interfere with the department’s ability to give candid legal advice to other parts of the executive branch -- triggered attacks from the panel’s Democratic minority.

“These memos may well have set in motion a process that led to these abuses,” Vermont Sen. Patrick J. Leahy, the committee’s ranking Democrat, said in a statement issued after the hearing. “Hiding these documents from view is the sign of a cover-up, not of cooperation.”

“We know when we have these kinds of orders what happens,” Sen. Edward M. Kennedy (D-Mass.) said at the hearing.

“We get the stress tests. We get the use of dogs. We get the forced nakedness,” he continued, holding up a photograph showing Iraqi detainees at the Abu Ghraib prison cowering before American guards and dogs.

“This Congress is investigating prison abuse,” Kennedy said. “We have specific needs for the documents that allowed these abuses to occur.”

Ashcroft denied that actions by the president or the department had contributed to the abuse.

“That is false,” he answered Kennedy. “It is an inappropriate conclusion. The kinds of atrocities the senator has recited ... are being prosecuted by this administration. They are being investigated by this administration. They are rejected by this administration.”

Sen. Joseph R. Biden Jr. (D-Del.) and Sen. Richard Durbin (D-Ill.) said there might be grounds to hold Ashcroft in contempt of Congress for refusing to turn over the documents.

“You have to give us a specific legal authority which gives you the right to say no, or the president has to claim privilege, and you’ve done neither,” Durbin said, accusing Ashcroft of “complete evasion.”

Biden, who has a son in the Delaware National Guard, accused Ashcroft of putting soldiers at risk. Ashcroft, whose son has been on active duty with the Navy in the Persian Gulf, strongly denied the allegation.

“There’s a reason why we sign these treaties -- to protect my son in the military,” Biden said. “That’s why we have these treaties, so when Americans are captured, they’re not tortured.”

Since Ashcroft’s last appearance before the Judiciary Committee in March 2003, the department has been buffeted by a number of controversies, including the two-week detention last month of Muslim lawyer Brandon Mayfield in Portland, Ore., based on a flawed FBI fingerprint match that erroneously linked him to the Madrid rail bombings in March. Ashcroft said he regretted the episode.

The Justice Department memos were directed in part to the CIA, which had requested guidance concerning proper procedures under the torture law to ensure that its operatives would not be in violation.

In a March 6, 2003, “working group report,” top military attorneys advised Secretary of Defense Donald H. Rumsfeld that, in some instances, torture would be deemed appropriate as long as the information gathered from detainees helped prevent another terrorist attack.

The military lawyers based their conclusions on analysis provided to them from Justice Department lawyers.

“As DOJ has made clear in opinions involving the war on Al Qaeda,” the memo said, “the nation’s right to self-defense has been triggered by the events of Sept. 11.”

The lawyers said that if a military interrogator “harmed” a detainee in some fashion, “he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network.

“In that case, DOJ believes that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

But the memo emphasized that there was no clear case law that permitted torture and noted that “even in war, limits to the use and extent of force apply.”

The memo further cautioned that anyone in the military chain of command who ordered someone to be tortured also might be violating the law.

“Under both international law and U.S. law, an order to commit an obviously criminal act, such as the wanton killing of a noncombatant or the torture of a prisoner, is an unlawful act and will not relieve a subordinate of his responsibility to comply with the law of armed conflict,” the memo said.