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The Pinochet Principle: Bush Defends Torture in the Name of National Security

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We speak with the president of the Center for Constitutional Rights Michael Ratner about U.S. torture policy, ignoring national and international law and the Bush administration claim that the right to set aside law is “inherent in the president.” [Includes transcript]

Attorney General John Ashcroft is refusing to release or discuss memos detailing U.S. torture policy as lawmakers accused him of trying to hide how the Bush administration has justified the abuse of prisoners.

The administration has come under fire from human rights groups and military lawyers in recent days for concluding two years ago that it could ignore international and domestic laws and allow US soldiers to torture detainees.

A series of leaked memos published in the press this week outline how lawyers for the administration determined U.S. soldiers could torture detainees during interrogations by claiming it was in the interest of national security. The memos indicate that lawyers from the Defense and Justice departments as well as the White House and Vice President’s office backed the policy changes.

During three hours of testimony before the U.S. Senate Judiciary Committee yesterday, Attorney General John Ashcroft refused to provide copies of the memos in a session marked by several sharp exchanges. During the hearing Ashcroft came under questioning from Massachusetts Senator Ted Kennedy.

KENNEDY: In the front page of the Times, it has this quote, “A team of administration lawyers concluded in a March 2000 legal memorandum, President Bush was not bound either by international treaty prohibiting torture or by federal anti-torture law because he has the authority as commander in chief to approve any techniques needed to protect the nation’s security.” Do you agree with that conclusion?

ASHCROFT: Senator Kennedy, I’m not going to try and issue hypothetical…

KENNEDY: I’m not asking hypothetical. This is a memoranda that, again, was referred to today in the Post. “August 2002, Justice Department advised the White House that torturing Al Qaida terrorists in captivity abroad may be justified and that international laws against torture may be unconstitutional if applied to interrogations.” Do you agree with that?

ASHCROFT: I am not — first of all, this administration rejects torture.

KENNEDY: I’m asking you whether this is — these are — there are three memoranda, January 9, 2002, signed by John Yo (ph), the August 2002 Justice Department, the (inaudible) amendment memo and the March 2000 — the interagency working group. Those are three memoranda. Will you provide those to the committee?

ASHCROFT: No, I will not.

In July 2002, just one month before the August memo referred to by Kennedy, the U.S. had opposed a United Nations draft international treaty against torture that had taken a decade to negotiate and would have set up an international system of inspections for all sites where prisoners were held, to insure that torture was not taking place. Kennedy yesterday continued to press Ashcroft to release the memo when Delaware Senator yielded the floor to him:

KENNEDY: Just, General, has the president authorized you to invoke the executive privilege today on these documents?

ASHCROFT: I am not going to reveal discussions, whether I’ve had them or not had them, with the president. He asked me to deal with him as a matter of confidence. I have not invoked executive privilege today. I have explained to you why I’m not turning over the documents.

KENNEDY: Well, what are you invoking?

ASHCROFT: I have not invoked anything. I have just explained to you why I’m not turning over the documents.

BIDEN: Thank you very much. Well, General, that means you may be in contempt of Congress then. You got to have a reason not to answer our questions, as you know from you sitting up here. There may be a rationale for executive privilege that misses the point, but, you know, you have to have a reason. You are not allowed, under our Constitution, not to answer our questions, and that ain’t constitutional.

Related Story

StoryMay 20, 2009New Yorker Correspondent Jane Mayer and British Attorney Philippe Sands on Bush Administration Torture and How Obama Should Address It
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Can you talk about these memos?

MICHAEL RATNER: These memos are extraordinary for the Center for Constitutional Rights got the April memo, 2003, we were just — popped our eyes out, because what it says is really something I have never expected to see. It says that the President and his Commander in Chief powers, is exempt from laws in the United States that prohibit torture, is exempt from the torture convention which the United States ratified and as Commander in Chief, he can basically take whatever action he wants to defend the United States. I call it the pinochet defense. I call it the Troy argument. You can sack a city, kill all of the men and sell everybody into slavery. You can do that. It turns on its head a thousand years of law and makes you think what was the annex attached to that document? The document had an annex of what the interrogation techniques were supposed to be. That’s one of the issues that came up in the hearing with Ashcroft yesterday and that’s what we want to see.

AMY GOODMAN: That’s what Ashcroft was refusing to show?

MICHAEL RATNER: Among other things, that was one of the critical documents is the interrogation techniques that everybody in the press all of a sudden compared to two years ago and we knew about some of the torture. Now all of a sudden, the press is all over this trying to get that document. Ashcroft so, far, has refused. It’s an important document. It’s not the end-all and be-all but it will show a number of techniques that I believe will constitute torture.

AMY GOODMAN: Why was he refusing to show them. On what grounds is this contempt of Congress?

MICHAEL RATNER: You have to take executive privilege to not turn it over. He didn’t do that.

AMY GOODMAN: Why? Why didn’t he? What would that invoke once he did that?

MICHAEL RATNER: He would say then it was part of the executive holding a document as opposed to him himself. The President saying I have a right to hold this document. That doesn’t mean that he could hold it in all cases, but at least it sets up the privilege. It can be overcome. If Nixon tried to withhold the Watergate tapes, the court then said you have to turn them over. Not a valid invocation of the privilege. He didn’t get there. What’s really going on here? What’s going on here is an incredible cover up of illegality by our government at the highest levels in my belief.

AMY GOODMAN: So, this memo comes out. We have memo from Justice Department, memo from the Pentagon. How high up does it go? Who approved this?

MICHAEL RATNER: This memo has Rumsfeld’s name on the cover. It also says something really interesting. If our soldiers or if our people are going to do this kind of conduct, it might be best to shield them with the Presidential order or directive. So, it indicates on page 24 of the document that a Presidential directive would be very helpful here. So, that’s the other document that you want to see here. Is there a Presidential directive? Look, it’s not going to say go torture people, but in my view, it may say, these are techniques that are authorized to be used which many lawyers will say constitute torture or cruel and inhumane or degrading treatment. It’s an extraordinary memo. If people want to see it, we have it linked on our website as a PDF file. Its You can go there and look at pages 21 to 24. If you think this country is going in a bad way, this will confirm your worst fears.

AMY GOODMAN: If the memo says that the President can claim to be able to ignore laws regarding torture on the grounds of national security, what other laws could he ignore?

MICHAEL RATNER: Well, it actually goes farther than that. It says that the President is exempt from all criminal laws in the United States with regard to when he has the Commander of Chief power fighting a war. In other words, he’s exempt from all law. The example of what happened to Troy is not outside here. That’s what he’s saying. He’s saying in a war I can do anything. In the war, there’s no Geneva convention and there’s no convention against torture and there’s no law there at all. I can pick you up tomorrow and put you in the brig, torture you and do whatever I want and it can be justified in the name of national security.

AMY GOODMAN: What about the ticking time bomb theory, the idea if there’s a ticking time bomb, you can do anything to a person who can tell you how to — where it is?

MICHAEL RATNER: A famous law school hypothetical for which they have never actually found one, but once you open the door to that, as everybody who studies this issue, it opens it to thousands of people being tortured. That is not what this memo is about. This memo is not saying ticking time bomb. The memo is saying it’s a general mat they’re the president is exempt from using laws that prohibit torture; is exempt from those laws.

AMY GOODMAN: During recent Supreme Court testimony, the Bush administration said that they were not using torture. Did they lie to the Supreme Court?

MICHAEL RATNER: It was extraordinary hearing. Judge Ginsberg — Justice Ginsberg turns to Paul Clement and says, what if you use mild torture? Paul Clement says that the United States doesn’t engage in torture. The key words to me in this whole thing — “Trust us.” that’s the way our government is trying to sell the war in Iraq, the abuse in Abu Ghraib, what’s happening in Guantanamo Bay. “Trust us.” They can’t be trusted. They need a court looking at them. They need Congress looking at them and they need the people of America going after them.

AMY GOODMAN: We continue our conversation with attorney Michael Ratner. Michael, you are headed to Washington right now. You are filing a lawsuit, another one?

MICHAEL RATNER: Right. I can’t really talk about it today until 1:00 when I go to Washington, but we’re going to be filing a major lawsuit involving these torture allegations. We just want to really — right now is a time, really, to put pressure on this administration so that everything gets exposed about what’s going on, so we can really put a stop to it and let the American people know how essentially lawless this administration is right now.

AMY GOODMAN: What do you understand is happening on Guantanamo? The information that we have is that general Miller, who was in charge of Guantanamo was brought to Abu Ghraib, that among his recommendations was bring in the dogs. Actually, the dogs.

MICHAEL RATNER: He was sent there to get Guantanamo-ize Abu Ghraib. That was the word they used. They were not doing as well in Iraq as they could, on interrogations. He was using certain interrogation techniques in Guantanamo. He goes in august 2003, to Abu Ghraib. Two months later what do we see, but the famous photographs that took place. The memo that we’re talking about, the memo of April, 2003, on the website is the one about Guantanamo. Those interrogation techniques, if and when we can get them, are what were used in Guantanamo. They became, apparently, the model for what was used in Iraq.

AMY GOODMAN: You have represented people in Guantanamo, whatever that means right now, given their lack of access to lawyers, but what have people told you about what happened there?

MICHAEL RATNER: Well I did see two of my clients. They were released because what they did is they falsely confessed to meeting Osama Bin Laden when their pictures were shown; the government claimed they were pictures in the video. After three months of interrogation, three months of isolation, dogs, chained to the floor for 12 hours, food deprivation, the whole business, loud noises, they falsely confessed. Only after British intelligence proved they were in England at the time that the video was made they were released. It just shows you how useless this stuff is, how harmful it is, and we should look into more into what is happening in Guantanamo even though we are focused on Iraq now.

AMY GOODMAN: The vice president’s office. What relation does this have to this?

MICHAEL RATNER: Well that’s a good question. It’s hidden in a lot of this material. Although, I did see a reference to some people in the vice president’s office having some knowledge of this.

AMY GOODMAN: Looking at talking points memo by Joshua — Josh Marshall, saying, quoting the “Wall Street Journal”, to protect subordinates, should they be charged with torture? The memo advised Mr. Bush issue a presidential directive or other writing that could serve as evidence since authority to set aside the laws is inherent in the president. Marshall of said the right to set aside law is inherent in the president. That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy let alone a constitutional republic that the law is superior to the executive, not the other way around. This is the essence of what the rule of law means. The government of laws is not men, and all of that.

MICHAEL RATNER: It’s a totalitarian position that the government has taken in the memo that we referred to. He’s exactly right. When you can set aside all law, what are you saying except that you are a dictator? That’s what he is saying boldly, openly and it’s about time the American people did something about it.

AMY GOODMAN: What do you think that the American people can do right now?

MICHAEL RATNER: One thing they should do is keep hitting everybody; we want to get every document out. We want a special prosecutor, which is what I think ought to happen here to look at the highest levels. All of these little investigations going on, around seven lower level soldiers in Abu Ghraib, that’s just not what this is about anymore. It’s clear that the opening of lawlessness in this administration came from the very top. It came not just in the memos we’re talking about, it came in the early Gonzalez counsel to the president memo, to the president apparently that said that you can ignore the Geneva conventions in Afghanistan and ignore them because we don’t want to be subjected to war crimes. The stuff goes all the way up. We have to get to the bottom of it. It’s really — I consider it a major crisis of the republic, a major crisis of democracy.

AMY GOODMAN: “The New York Times” has in its final paragraph, in a piece on the torture memo, the march memorandum also contains a curious section in which the lawyers argue that any torture committed at Guantanamo would not be a violation of the anti-torture statute because the base was under American league jurisdiction, and the statute only concerns torture committed overseas. That view is in direct conflict with the position the administration’s taken in the Supreme Court where it’s argued prisoners at Guantanamo are not entitled to constitutional protection because the base is outside the American jurisdiction.

MICHAEL RATNER: This is one of my favorite parts. The government comes in to court and says: we have no jurisdiction over Guantanamo; it’s outside the sovereignty of the United States. The courts cannot hear the cases coming out of Guantanamo, but for purposes of the criminal statute prohibiting torture, because it only applies outside the United States, they’re going to make the argument that Guantanamo is now inside the United States in terms of that statute. So, you don’t have to go very much farther to say they’re doing nothing but manipulating the law to essentially allow themselves to be not prosecuted for torture, and to allow themselves to essentially leave people in total legal limbo on Guantanamo. That’s an extraordinary moment we have reached. Really, the worst that I have seen in this republic, really, sentence I have been a lawyer.

AMY GOODMAN: We have been doing a series this week, “Remembering the Dead.” it’s in the wake of the death of former president Ronald Reagan, who will be buried Friday. As we talk about torture, let’s go back several decades to the torture manuals. You have been involved in a series of lawsuits through the Center of Constitutional Rights suing the U.S. Government. Can you talk about the Reagan era?

MICHAEL RATNER: Well, I spent eight years really, of my life fighting everything Reagan did in Central America. We brought lawsuits in El Salvador, Guatemala, Nicaragua, Grenada, each area in which the president used troops illegally, and there was torture going on. The torture book in particular came out of the school of the Americas which instructed Latin American dictators and others in torture. That kind of stuff was going on with the Contras in Nicaragua. One of our clients, Ben Linder, who was killed by the Contras, a young man building a dam, engineer in Nicaragua, many people think he was tortured while he was lying on the ground. It was used in Central America. It was used in Nicaragua, and we tried to put on end to it. They withdrew it, and now we see this going again.

AMY GOODMAN: A torture manual, you mean —

MICHAEL RATNER: A manual of how to do torture. You sit the person in the chair; you put him in a funny position. You use electroshock and threaten his family. You do all of that kind of stuff.

AMY GOODMAN: And this was given to the Contra rebels?

MICHAEL RATNER: This was given out by the C.I.A. to interrogators in Nicaragua. That’s correct. So, this is apple pie, unfortunately for many of our intelligence agencies. We thought maybe we had created some space that it wasn’t happening, and now we see not only is it happening, but it’s being justified. When you caught the C.I.A. with the torture manual, that was embarrassing. But they didn’t try to say that the president has the power to torture people. Here that’s what they’re saying. The president has the power by directive to torture people. But, really when I see what’s going on with Reagan and the slaughter that took place in Nicaragua, we brought a case about a woman named Myrna Cunningham, a Mosquito Indian doctor in northern Nicaragua suing Reagan and all his cohorts saying they basically backed the Contras and backed them in the war of terror and torture. She was raped numerous times, purposefully as a form of torture to discourage her from supporting the Sandinistas. That’s the man who died and was responsible for what happened in Nicaragua.

AMY GOODMAN: How was President Reagan responsible for that?

MICHAEL RATNER: Well, at the highest levels, what they did was back the Contras. Set up an illegal Contra force to go into Nicaragua, to fight against the legitimate government of Nicaragua. Then when you had the Boland amendment come down prohibiting U.S. Aid into the Contras, Reagan essentially with a plan, with Oliver North and others, went around that amendment, that restrictions, and still illegally funded the Contras. In fact, we brought a lawsuit trying to compel prosecution of Reagan for that. It led to Iran Contra-gate, which was the trading of missiles to Iran, the money then diverted to the Contras. Reagan’s little memo book says in it, sold missiles to Iran. It was completely illegal under the law to sell missiles at that time to Iran, completely illegal to fund the Contras. Here’s what we did. We set up this force, trained them in the United States, sent them into Nicaragua, slaughtered thousands of people and overturned the government. I mean is that the man we’re honoring today?

AMY GOODMAN: Yesterday we also talked about Guatemala, but you brought a lawsuit against the general who had — general Gromala, who was the defense minister.

MICHAEL RATNER: He was responsible we believe for at least 10,000 deaths in Guatemala. We sued him when he was being recycled as a potential new president of Guatemala. He was being recycled at the Kennedy school. We sued him on behalf of victims that their stories are so awful that you cannot describe them on the air. Really just of people just being murdered, hung from trees, skin torn off, young children killed. This is a general supported by our government, supported by Reagan, recycled at the Kennedy school. Again, we sued them successfully at that point. Really, essentially, we ended Gromala’s career as a potential presidential candidate in Guatemala. In El Salvador, we did the same thing. There was a law that prohibited aiding the government if it was engaged in gross violations of human rights. Reagan would certify every six months they’re not in gross violations of civil rights. This was despite hundreds and hundreds and hundreds of killings in El Salvador.

AMY GOODMAN: What were the results of your lawsuits?

MICHAEL RATNER: Well, most of them — most of them — the ones for damages to some extent won. The one against Gromala won although we never collected the money. The ones that really tried to stop this essentially lost. The government took the position we had no right to go into a court, this was national security. There was no right to bring these cases. There were important cases, I think, during that period to demonstrate to the world and to the American public that what we were doing in those countries was not only flatly illegal, but what was gross — gross violations of people’s human rights. I mean this is one of the worst slaughters this country is engaged in for eight solid years in terms of people as well as in terms of what it meant for people self-determination in those areas. The idea that today when I saw that, they may want to put this guy’s picture on a dollar bill what does that tell you — on the $10 bill. I’m going to have to hold that murderer’s dollars in my hands every day? I mean, it’s astounding to me.

AMY GOODMAN: From your perspective, is legal recourse or taking to the streets more effective?

MICHAEL RATNER: I think you need everything. I mean, I don’t think law alone in going to the courts is going to get us that far. When I file a case, it’s to support people’s movements in the streets. People’s actions, and to show them that there’s other means to fight. I’m a lawyer. It’s one way I fight. But I fight in the street. You don’t win cases outside of what’s happening in the streets and outside of popular opposition to a government. You hope that cases and lawsuits which not only help the people bringing them in strength and the people who are the planners in the cases but also will add to the whole mix of things that make it possible to really change the course of what a government is doing. And we came close in many cases in Central America, but in the end, you know, you have to face it. The democrats were as guilty almost as the republicans for what happened in Central America.

AMY GOODMAN: Mike at Ratner, we have a tape from the republican convention of 2000. I was able to catch up with Oliver North, who was there covering the convention. I’d like you to comment on it.

AMY GOODMAN: Oliver north. I’m Amy Goodman.

OLIVER NORTH: Hello, Amy. How are you?

AMY GOODMAN: What do you think of Cheney as the choice for vice president?

OLIVER NORTH: He’s perfect.

AMY GOODMAN: Why do you like him?

OLIVER NORTH: He would make a great vice president.

AMY GOODMAN: What would you like most about him?

OLIVER NORTH: Exactly that.

AMY GOODMAN: You had deal with him in the Iran Contra days. He was against the ban on sending the money to the Contras.

OLIVER NORTH: Yes he was, thank God.

AMY GOODMAN: How did he help you?

OLIVER NORTH: He helped the cause of democracy. Made sure that we ended up with freedom and democracy in Nicaragua, otherwise it would still be a communist country.

AMY GOODMAN: What about getting aid to the Contras, even though the congress said that it was not legal?

OLIVER NORTH: That’s not what the congress said at all.

AMY GOODMAN: The Boland amendment cut off funding.

OLIVER NORTH: I would ask you to read it. We in the media should be accurate and the Boland amendment simply said they couldn’t use federal money to support the Nicaraguan resistance for military and affiliated paramilitary activities. So, the president didn’t. The thing with Saudi Arabia, South Korea, and Ayatollah is that’s not taxpayer money. Surprisingly enough with all that went on in the five years of investigation; no one was ever prosecuted for violating the amendment.

AMY GOODMAN: Mr. Cheney tried to get rid of the Boland amendment.

OLIVER NORTH: The congress voted five times on the aid to the Nicaragua resistance. On four of those five times they provided millions and millions of taxpayer dollars. Only once did they vote not to.

AMY GOODMAN: And how did Cheney vote on that?

OLIVER NORTH: He voted the right way. Unfortunately with the minority.

AMY GOODMAN: What do you think he can accomplish today?

OLIVER NORTH: I think he will make a great vice president. He is going to make a great vice president.

AMY GOODMAN: That was Oliver North in 2000. Briefly, your response.

MICHAEL RATNER: Just recall that Oliver North was convicted of various criminal charges for what happened with Iran Contra gate. It was overturned on appeal. But what he says is really incredible to me about Cheney. I mean, if Cheney was involved in this at all, it would be amazing, because this was all an illegal plan to divert money to the Contras. And Oliver north can sit there and justify it and say that somehow this wasn’t against what congress meant is really amazing to me.

AMY GOODMAN: He said they could get private money or money from other governments as long as it wasn’t from the U.S. Congress.

MICHAEL RATNER: Right. Then you have to ask yourself why Poindexter and North were convicted, and overturned on technicalities on appeal that they could do that. In fact, what they did is the Boland amendment was not a criminal statute so obviously you’re not going to be prosecuted on that, but it was a prohibition. To read the Boland amendment that way is completely erroneous. It basically said you cannot aid the Contras. These guys went ahead and did it. That’s what they did.

AMY GOODMAN: I want to thank you very much. Attorney Michael Ratner headed now to Washington D.C., to file yet another lawsuit against the U.S. Government, this around torture. We’ll bring you the story of that lawsuit tomorrow. Thank you.


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