Did Donald Rumsfeld Violate Federal Law?

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Here’s a connection between the various torture memos that doesn’t seem to have been made yet anywhere in the media — it’s possible that, back in 2002, Defense Secretary Donald Rumsfeld authorized interrogation techniques he knew to be in violation of federal law. On November 27, 2002, Donald Rumsfeld received a memo from DOD General Counsel William Haynes requesting the Secretary’s approval of interrogation methods labeled “Category III.” The memo defines Category III interrogations as “Use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing.” Rumsfeld signed off on the document.

But an internal Department of Defense memo from a month and a half earlier in 2002 reveals the real definition of Category III. The memo was created by a Joint Task Force stationed at Guantanamo Bay and carries the subject line, “Request for Approval of Counter-Resistance Strategies.” Section c explains Category III interrogation techniques and shows where General Counsel Haynes got his definition. The fourth example of Category III interrogation reads, “Use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing.”

But the first example of Category III is the one Haynes probably should have pointed out to his boss. It involves “The use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family.”

What’s the problem? That’s almost an exact definition of torture under pre-existing federal law and is therefore illegal. 18 U.S.C 2340-2340A is a federal statute making the U.N. Convention Against Torture part of American law. It reads that torture is an act “committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering.” This last phrase—”severe mental pain or suffering”—is defined by a variety of criteria, two which read as follows: “(C) the threat of imminent death; (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances.”

So if you make a detainee believe that he or she will be killed, or that one of his or her family members will be killed, it is illegal under federal law. But that’s exactly what Rumsfeld authorized when he signed Haynes’ memo. Was the DOD aware of this? Yes. A different memo from the same Guantanamo Bay Joint Task Force outlines international and federal law that would seem to run contrary to DOD actions. When they get to 18 U.S.C. 2340, they dismiss it by saying “The torture statute (18 U.S.C. 2340)…does not create any substantive or procedural rights enforceable by law by any party in any civil proceeding.”

I’m no lawyer, but as far as I can tell that just means the DOD thinks it is above the law.

But there are other justifications for Category III interrogation tactics put forward by the administration, and the fact that our government is stooping to this kind of reasoning is just awful. A DOD document written for Donald Rumsfeld in March of 2004 says: “to violate 2340 the actor must have specifically intended to disobey the law. Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.” Alberto Gonzalez echoed this when he said, “the infliction of such pain must be the defendant’s precise objective.” If the torturer is doing his business simply to create pain, the Bush Administration is arguing, that is a violation of federal law. But if he/she tortures to extract information, the law no longer applies.

If that’s the case, then the Bush Administration can do anything it pleases to a detainee in order to get information, including the cruelest and most morbid forms of torture dating back centuries. What separates us from Uzbekistan and China, again? And what did the President say when he was visiting Panama? Wasn’t it, “We do not torture”? In direction violation of federal law, Rummy’s ensured we do just that.

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DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America will move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

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