Torture and Accountability
In making his claim, the Attorney General may have been using the now discarded Orwellian definition of torture that the Justice Department devised specifically to avoid prosecutions under the US statute making it a crime to engage in torture (Sections 2340-2340A of the US Code, Title 18). Under Justice's definition, torture was not torture if the torturer was simply seeking information from the victim. Only gratuitous or purely sadistic torture qualified as torture. Moreover, to meet the definition, the pain caused had to be the equivalent of losing an organ or bodily function, or dying. It is very unlikely that the President or any high-level US official ordered torture for torture's sake, so Ashcroft's testimony to that extent may have been perfectly truthful. (That definition of torture was formally abandoned just before Gonzales's confirmation hearings.)
Moreover, there are tantalizing suggestions that Bush may have condoned or possibly authorized coercive interrogation techniques. For example, a May 22, 2004, FBI agent's memo about interrogations in Iraq, made public under the Freedom of Information Act, repeatedly cites an executive order issued by President Bush that authorized "sleep deprivation, stress positions, loud music, etc." (The administration denied this and the FBI refused to comment.)
In addition, President Bush's oft-quoted executive order of February 7, 2002, calling for detainees to be treated humanely, by its very terms does not apply to the CIA. That leaves open the question of what standards of interrogation the President laid out for the CIA and whether his failure to impose the requirement of humane treatment on the CIA signaled permission for that agency to engage in torture or inhuman treatment of detainees. The possibility that the CIA engaged in torture or inhuman treatment of detainees was given greater substance when CIA director Porter Goss testified in March that the CIA was not at that time using torture against detainees but refused to testify about past practices except behind closed doors. (It was also given further substance by reports that some CIA personnel were dismayed at the Administration's change in the torture definition, since they may be exposed as a result to liability under the anti-torture act.)
To resolve the question, then, of the responsibility of higher-ups for torture and inhuman treatment in Iraq, there needs to be full disclosure of directives issued by President Bush and other top officials on the treatment of detainees and a full inquiry into what they knew about the serious mistreatment of detainees and what steps they took to stop the mistreatment once it came to their attention.
If the President did authorize inhuman treatment--or, knowing that such treatment was ongoing, failed to stop it--is he punishable under the War Crimes Act? White House counsel Gonzales did not specify any limits on who might be subject to prosecution in his January 2002 memo. And Attorney General Ashcroft in his Congressional testimony specifically denied that President Bush committed any crime. In making that statement, the Attorney General may have been relying on a doctrine advanced in the Justice Department's August 2002 torture definition memorandum, which argued that, under the Constitution, a Commander in Chief's capacity to conduct a military campaign cannot be constrained by US laws. In other words, as a law unto himself, the President cannot violate laws, because he doesn't have to obey them. During his confirmation hearings to replace Attorney General Ashcroft, Gonzales was repeatedly asked to repudiate the position that a President has the right as Commander in Chief to break US laws, but refused to do so.
The claim that a President, whether Bush or any other President, is above the law strikes at the very heart of our democracy. It was the centerpiece of President Nixon's defense in Watergate--one that was rejected by the courts and lay at the foundation of the articles of impeachment voted against him by the House Judiciary Committee.
Of course, President Nixon's national security claims in Watergate were entirely bogus. Breaking into a psychiatrist's office and wiretapping journalists and White House staff phones had nothing to do with national security; they were blatantly political efforts to get damaging information on electoral opponents. And getting the CIA to stop the FBI's investigation into campaign funds was purely an obstruction of justice.
Courts have not directly ruled on a President's powers to violate the US anti-torture statute or the War Crimes Act. But they have found limits on a President's claims of unchecked power as Commander in Chief. The Supreme Court rejected President Truman's contention that as Commander in Chief he could seize steel mills during the Korean War to keep them running. Similarly, the Supreme Court repudiated President Bush's claim that as Commander in Chief he had unlimited powers to incarcerate prisoners at Guantánamo. As Justice Sandra Day O'Connor stated, "A state of war is not a blank check for the President."