The Justice Department is rewriting its legal advice on how far U.S. interrogators can go to pry information from detainees, working under much different circumstances from the writers of earlier memos that appeared to justify torture.
The first memos were written not long after the Sept. 11 attacks, while the new advice is being crafted against the backdrop of prisoner abuse in Iraq.
Justice Department lawyers will spend several weeks reviewing and revising several key 2002 documents, especially a 50-page memo to the White House on Aug. 1, 2002, that critics have characterized as setting the legal tone for the mistreatment of prisoners at the Abu Ghraib prison.
"The reason the original memo was so damaging was that it was consistent with a pattern of conduct from Afghanistan to Guantanamo Bay to Iraq," Jonathan Turley, a constitutional law professor at George Washington University, said Wednesday.
A day after releasing hundreds of pages of legal memos on the terror war, Bush administration officials reiterated that even though President Bush signed a declaration in 2002 saying he had the authority to ignore international rules for treatment of captives, no orders were given to torture or mistreat prisoners.
The unusual decision to release the memos and disclose that some were being revised came amid intense political pressure from Democrats and other critics stemming from the Iraq and Afghan abuses. Yet no Bush administration officials flatly said the memos were wrong.
Current and former Justice Department officials rejected criticism that the Aug. 1 memo, signed by then-Assistant Attorney General Jay Bybee, laid a legal foundation for torture. They said that the memo's sections along such lines never became administration policy and that no detainees had been mistreated at Guantanamo Bay.
They also said that no Justice Department memo on interrogations addressed the war in Iraq, which the administration determined was governed by the Geneva Conventions and that treaty's rules for treatment of prisoners of war.
One of the most controversial sections of the Bybee memo that appears targeted for change or removal is entitled "The President's Commander-in-Chief Power." Over the next nine pages, Bybee lays out arguments that a key U.S. anti-torture law would be unconstitutional "if it impermissibly encroached on the president's constitutional power to conduct a military campaign."
"One of the core functions of the commander in chief is that of capturing, detaining, and interrogating members of the enemy," the Bybee memo said.
Critics say that reasoning goes too far. Some say it would give the president absolute authority in the waging of war.
"The administration has shown a stunning disregard for the law, resorting time and again to saying 'we are at war,'" said Sen. Edward M. Kennedy, D-Mass. "We are not under martial law in this country. The laws and the Constitution are not suspended because we are at war."
Democrats on Capitol Hill are pushing to secure release of more Bush administration documents, with some in the House calling for a special committee to investigate abuses at Abu Ghraib.
"We can't get to the bottom of this unless there is a clear picture of what happened at the top," said Sen. Patrick Leahy of Vermont, senior Democrat on the Senate Judiciary Committee.
The House Appropriations Committee voted Wednesday to bar the Justice Department from issuing legal justifications for torture.
The Senate, however, defeated 50-46 a measure that would have declared all U.S. officials bound by anti-torture laws and required Pentagon reports on interrogation techniques, the number of detainees denied POW status, Red Cross findings on U.S. military prisons and a schedule for trying terror suspects held at Guantanamo Bay.
Although the administration released memos on interrogation techniques approved for military personnel, the advice given to the CIA and other intelligence agencies remains classified and will not be released, officials say. One CIA contractor has been indicted on charges of severely beating an Afghan prisoner who later died, and others are under investigation.
It is clear that, in a presidential election year, photos of U.S. personnel abusing prisoners in Iraq made the conclusions of the post-Sept. 11 memos untenable for the Bush administration, legal experts say.
"The highly charged political context of prisoner mistreatment highlights the sensitive nature of earlier (Justice Department) opinions and casts their manipulation of the law in a critical light," said Thomas Sargentich, an American University law professor and former attorney with the Justice Department's Office of Legal Counsel.
John Yoo, a University of California, Berkeley law professor and former Justice Department official, said government lawyers were confronted with a unique foe after the Sept. 11 terror attacks, one to whom conventional rules of war meant nothing.
"Sept. 11 started a completely new kind of conflict, with a new non-state enemy that fights in unconventional ways that violate the very core notions of the laws of war," Yoo said. "In this new conflict, I think it's good practice for the government to ask questions about the legal lines established in statute by Congress."
Yoo, who worked with Bybee in the Bush administration's Office of Legal Counsel, declined to comment on the substance of the memos.
Attorney General John Ashcroft also refused to comment Wednesday, saying that senior agency officials insisting on anonymity had given an "unprecedented" briefing about the documents a day earlier.
"I don't expect to make further comments about that," Ashcroft said.
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