Magazine article The Nation , Vol. 279, No. 1
If there was ever any doubt, it is now clear that the torture at Abu Ghraib cannot be dismissed as the actions of a few bad actors. Two leaked memorandums, one to White House counsel Alberto Gonzales from the head of the Justice Department's Office of Legal Counsel and the other to Defense Secretary Donald Rumsfeld from a Working Group on Detainee Interrogations in the Global War on Terrorism, make crystal clear that this Administration consciously sought out every loophole it could find to justify inflicting physical and psychological pain on captives for the purpose of obtaining intelligence. The memos are the "smoking guns" of the Abu Ghraib scandal. The fact that they were advanced by the two executive branch entities now in charge of the torture investigations makes clear that a special prosecutor is needed.
The memos reveal an Administration that took upon itself the power to define the law. In the considered views of these memos, the President of the United States is not bound by any law when he is acting as Commander in Chief. Indeed, the memos argue, it would be unconstitutional for Congress, or international law, to seek to constrain the President's prerogatives, even on a matter as universally prohibited and morally repugnant as torture.
The Office of Legal Counsel is often referred to as the "conscience" of the executive branch. But if this is the executive branch's conscience, we have grave problems. The office's August 2002 memo to Gonzales provides the framework for the Working Group report to Rumsfeld that followed in March 2003. Both memos read like a tax lawyer's advice on loopholes. The criminal ban on torture requires "specific intent," so if the interrogator knows that his actions will inflict severe harm, but he doesn't "specifically intend" them to do so, he's off the hook. Threats of death are permissible if they are not threats of "imminent death." Drugs designed to disrupt a suspect's personality may be administered if they do not "penetrate to the core of an individual's ability to perceive the world around him." Mental harm is fine if it's not "prolonged." Pain is acceptable if it's less than the pain that accompanies "serious physical injury, such as organ failure. …