Video: Gonzales' role on detainees scrutinized

By Pete Williams Justice correspondent
NBC News
updated 2/1/2005 7:42:10 PM ET 2005-02-02T00:42:10

The Bush administration, from the president on down, says it doesn't approve torture, but what's the law: Is torture legal?

The U.S. is bound by an international treaty — the Convention Against Torture and Cruel and Inhuman Treatment. A separate federal law makes it a crime and there's military law against it too.

Even so, some legal scholars complain that Alberto Gonzales has been unwilling to say it's never allowed.

"It's pretty clear that he's still trying to preserve some zone in which the president or higher executive officials could order torture and cruel, inhuman, or degrading treatment," says Yale Law School professor Harold Koh.

But exactly how is torture defined?

On that, there's been a clear shift. A 2002 Justice Department memo said only the most extreme conduct amounts to torture — actions that cause the kind of pain that comes with serious physical injury, organ failure, or death. But the Justice Department now bans much more conduct as torture.

Even so, opponents of Gonzales claim he would allow another loophole by arguing that the ban on degrading or cruel treatment — conduct just short of torture — doesn't apply to U.S. civilians.

Elisa Massimino, a human rights lawyer, says that would allow the CIA to engage in the kind of mistreatment documented at Abu Ghraib.

"That's what the administration is doing," she says. "Now, you want to talk about a loophole. We're not talking about the gray areas. We're talking about what you saw in those pictures; what we all so in those pictures."

But that raises another question: Are some coercive techniques available?

Many scholars say, yes, things like sleep deprivation or standing for long periods of time are legal, even though some may consider them cruel.

"I think it would be a mistake for the government — in this new, unprecedented kind of war, against an enemy that fights us by violating all the rules of war — to commit ourselves to things we will and will not do when we're not legally required to," says former Justice Dept. official John Yoo.

The Bush administration says it's reviewing all of its interrogation techniques to see whether any violate the law.

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