National Commentary

Nicholas F. Benton: The 2002 Taft Memo on Torture




President Obama has not ruled out potential criminal prosecution of former high-level Bush administration officials if the attorney general establishes that laws were broken in the sanctioning and ordering of water boarding and other forms of torture.

Obama’s latest comments on the subject to not contradict what he said earlier about not prosecuting those ordered to commit the acts, themselves.

With the just-released documentation of the extensive use of torture against detainees in the “war on terrorism,” not only the Obama administration, but leaders in Congress and an outraged general population are in a growing state of outrage.

The acts of torture were not only inhumane and illegal, by both domestic and international law standards, but they invited retaliation on a similar scale against U.S. personnel and most likely produced deeply flawed intelligence because no one subjected to such procedures could be relied upon to tell the actual truth.

In this context, we are reminded that way back in January 2002, the chief legal advisor to the State Department, William H. Taft IV, great-grandson of the first U.S. president to throw out a baseball on Opening Day, opined that such use of torture was illegal and should not be conducted.

Reported by R. Jeffrey Smith in the Washington Post on June 24, 2004, the 2002 Taft memo to the Justice Department’s deputy assistant attorney general called the Justice Department’s legal advice to President Bush on handling detainees in the war on terrorism “seriously flawed.” According to the article, Taft wrote that the Justice Department advice “was ‘seriously flawed’ and its reasoning was ‘incorrect as well as incomplete.’ Justice’s arguments were ‘contrary to the official position of the United States, the United Nations and all other states that have considered this issue,’ Taft said.”

The letter was excluded by Bush officials when it released hundreds of pages of documents in June 2004 to justify its detainee policy as in compliance with both domestic and international law.

There were other high-level dissidents of the administration policy as well, including lawyers for the Joint Chiefs of Staff.

“It was clearly the position of the senior leaders of the military that the Geneva Conventions should apply to Taliban militia,” Smith quoted an unnamed “former military officer familiar with the dispute.” He added, “Air Force Gen. Richard B. Myers, the Joint Chiefs chairman, ‘was very strong with the Secretary of Defense on a number of occasions’ in expressing this viewpoint.”

Because of his role, Taft was the government’s principal interpreter of treaties. Quoting Smith, Taft “accused John C. Yoo, the deputy assistant attorney general, in the Jan. 11 letter of preparing advice for Bush based on ‘wrong’ premises. He also said Yoo’s idea that Bush could ‘suspend’ U.S. obligations to respect the Geneva Conventions was ‘legally flawed and procedurally impossible.'”

Taft wrote, “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Convention.”

Taft was joined by his boss, Secretary of State Colin Powell, opposing Yoo’s opinion, but then White House counsel Alberto Gonzales subsequently advised Bush that Taft and Powell were wrong, and Yoo’s analysis was “definitive.”
A month after the memo, on Feb. 7, 2002, Bush signed an order asserting his right to suspend the Geneva Conventions protections, and also declared that all Taliban militia were “unlawful combatants” ineligible for tribunals.

Smith’s article said that after this, “Yoo, Attorney General John D. Ashcroft and senior civilians in the Pentagon no longer sought to include the State Department or the Joint Staff in deliberations about the precise protections afforded to detainees by the Geneva Conventions.” Leaving the administration in 2005, in September 2006, Taft co-signed, along with 28 other retired military or defense department officials, a letter for Congress reiterating his belief that the Bush administration’s attempt to redefine Common Article 3 of the Geneva Convention “poses a grave threat” to U.S. service members.

All this seems like a good place for the new attorney general and the Congressional committees’ investigations to begin.