Declassified Memo Outlined Justification for Interrogation Tactics, Presidential Authority

by Jason Ryan

The Justice Department's newly declassified torture memo outlined the broad legal authority its lawyers gave to the Bush White House on matters of torture and presidential authority during times of war.

The March 14, 2003 memorandum, which has been replaced by later memos, provided legal guidance for military interrogations of alien unlawful combatants, and concluded that the president's authority during wartime took precedence over the individual rights of enemies captured in the field.

The memo, released Tuesday, determined that amendments to the U.S. Constitution, which in part protect rights of individuals charged with crimes, do not apply equally to enemy combatants.

"The Fifth Amendment due process clause does not apply to the president's conduct of a war," the memo noted. It also asserted, "The detention of enemy combatants can in no sense be deemed 'punishment' for purposes of the Eighth Amendment," which prohibits "cruel and unusual" forms of punishment.

"Unlike imprisonment pursuant to a criminal sanction, the detention of enemy combatants involves no sentence judicially imposed or legislatively required," the memo said. "Accordingly the Eighth Amendment has no application here."

The memo was drafted by John Yoo, who was at the time the deputy assistant attorney general for the Justice Department's Office of Legal Counsel. It was sent to William J. Haynes, then the general counsel at the Pentagon.

Former aides to John Ashcroft say the then-attorney general privately dubbed Yoo "Dr. Yes" for being so closely aligned with lawyers at the White House.

The memo also provided an argument in defense of government interrogators who used harsh tactics in their line of work.

Towards its conclusion, the document noted, "Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability."

Citing related opinions, the memo said the United States had a right to defend itself after the Sept. 11 attacks.

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

"This national and international version of the right to self-defense could supplement and bolster the government defendant's individual right."

The memo also laid out a defense against the authority of the U.N. Convention Against Torture, or CAT. The 81-page memorandum noted, "Even if any nation had properly objected, that would mean only that there would be no provision prohibiting torture in effect between the United States and the objecting nation -- effectively mooting the question whether an interrogation method violates the Torture Convention."

"We conclude that the Bush administration's understanding created a valid and effective reservation to CAT."

The Justice Department still has not disclosed an additional February 2005 legal opinion, which was drafted after Attorney General Alberto Gonzales took office. But previous interrogation memos, which have been released, include an Aug. 1, 2002 memorandum, which laid out standards and legal guidance for interrogation, including possible justification for torture.

The memo is known as the Bybee memo after Jay Bybee, who was at the time the head of the Office of Legal Counsel, though Yoo drafted much of the document.

Jack Goldsmith who headed OLC from October 2003 to July 2004, and worked at the Pentagon before coming to the department, has described many of the legal opinions, including the Bybee memo, as "flawed."

In a 2007 interview with the PBS program "Frontline," Goldsmith described the problems he had reviewing and standing by Yoo's work.

"After I read these opinions I had a whole flurry of emotions," he said. "My first one was disbelief that programs of this importance could be supported by legal opinions that were this flawed. My second was the realization that I would have a very, very hard time standing by these opinions if pressed. My third was the sinking feeling, what was I going to do if I was pressed about reaffirming these opinions or something required my decision related to these programs?"

"At that point I wasn't sure," Goldsmith said.

A Dec. 30, 2004 memorandum by former head of the Office of Legal Counsel Dan Levin replaced both memos.

Levin's memo noted, "Torture is abhorrent both to American law and values and to international norms."

Senate Judiciary Chairman Patrick Leahy, D-Vt., weighed in on the memo Tuesday. He said in a statement that the memo's release is a "small step forward" in his quest for documents from the Bush administration, though he said there are still many documents the White House "continues to shield& even from members of Congress."

"The memo they have declassified today reflects the expansive view of executive power that has been the hallmark of this administration," Leahy said. "It is no wonder that this memo, like the now-infamous 'Bybee memo,' could not withstand scrutiny and had to be withdrawn. Like the 'Bybee memo,' this memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country's status as a beacon of human rights around the world."
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