by James Oliphant
The Justice Department late Tuesday released a declassified 2003 memorandum long sought by congressional Democrats and other administration critics that outlines the government's legal justification for harsh interrogation techniques used by the military against captured enemy combatants outside the United States.
(Here are part one and part two of the memo.)
The memo, written by John Yoo, then a key architect of legal policy in the wake of 9/11, dismisses several legal impediments to the use of extreme techniques.
Yoo was long a proponent of an aggressive approach in the war against terrorism and a believer in executive branch authority. But the memo was withdrawn as formal government policy less than a year after it was written.
In the March 14, 2003 memo, Yoo says the Constitution was not in play with regard to the interrogations because the Fifth Amendment (which provides for due process of law) and the Eighth Amendment (which prevents the government from employing cruel and usual punishment) does "not extend to alien enemy combatants held abroad.":
The memo goes on to explain that federal criminal statutes regarding assault and other crimes against the body don't apply to authorized military interrogations overseas and that statutes that do apply to the conduct of U.S. officials abroad pertaining to war crimes and torture establish a limited obligation on the part of interrogators to refrain from bodily harm.
It also defines the United States' obligations under the United Nations Convention Against Torture and other international treaties prohibiting torture to be confined to ensuring that interrogators do not apply "cruel and unusual punishment" as defined by American constitutional law, regardless of differing international standards.
And it restates the oft-repeated view held by administration officals that the Geneva Conventions, which governs the treatment of prisoners of war, does not apply to members of al Qaeda and the Taliban.
The memo also reflected Yoo's belief in that the executive branch had the inherent authority during wartime to obtain information by necessarily hazardous means:
"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," Yoo wrote. "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."
It was during 2003, while the memo was operative, that guards and other military personnel committed the abuses of prisoners at Abu Ghraib in Baghdad, Iraq. The memo was withdrawn shortly thereafter, but before those abuses came to light.
The memo was prepared by Yoo for William Haynes, then the Pentagon's general counsel and another key player in the administration's legal strategy. It was declassified Monday by Haynes' acting successor, Daniel Dell' Orto. Yoo is now a law professor at the University of California at Berkeley.
Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, which has repeatedly asked the Justice Department to release the memo and others like it, had this to say Tuesday evening:
The memo they have declassified today reflects the expansive view of executive power that has been the hallmark of this administration. 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.It has been more than four months since I asked the White House – again – to declassify the secret Justice Department opinions on interrogation practices. Today’s declassification of one such memo is a small step forward, but in no way fulfills those requests. The administration continues to shield several memos even from members of Congress.
Comments
this
Posted by: Petyer | April 1, 2008 9:01 PM
What constitution??? I think the Bush administration has accomplished it's mission.
Who needs civil rights anyway.
Posted by: Swamp Thing | April 1, 2008 9:53 PM
Although John McCain initially opposed torture, he has since warmed up to the Bush administration program of "enhanced interrogation," recently agreeing with Bush & Co. that waterboarding should not be prohibited. So much for the maverick label, McBush.
Posted by: Jack | April 1, 2008 9:54 PM
little by little they chip away our constitution.
president Bush will go down in history as the worst president America has ever had
Posted by: dcbinc | April 1, 2008 10:08 PM
John Yoo, professing the beliefs about law that he does, obviously does not understand law and is not qualified to be a professor of law.
He should be imprisoned along with the people whom he enabled to commit torture.
Posted by: David Dickinson | April 1, 2008 10:11 PM
This connection to Berkeley suprised me.
Posted by: Bo | April 1, 2008 10:12 PM
This is typical in every way of the Bush Administration's policies. Hide or destroy evidence; ignore the constitution and international treaties when it suits their purpose; lie when the opportunity presents itself; use no moral criteria when taking actions; use diplomacy as a last resort; be confrontational and unilateral internationally with allies and opponents equally. The amazing thing to me has always been the number of people in this country who favor this approach. I wouldn't be surprised if we voted voluntarily for a dictatorship. The mirror was right: How can 59,054,087 Americans be so DUMB?
Posted by: Richard Bentley | April 1, 2008 10:15 PM
Jack:
McCain is nowhere near the same as GW. They disagree on about as many issues as the agree on. Furthermore, these enemy combatants that you want shown the virtue of our Constitution would NOT show you any rights under any law (see video of Nick Berg and Daniel Pearl). Get a clue... while you are off hugging trees and singing kumbieya (sp?) there are enemies of our country that would love nothing more than to see every American dead (save Muslims).
We are not being harsh enough.... we either fight fire with hotter fire or give up! Because as long as we fight with one arm tied behind our back... we don't have a chance in hell of winning. Now if we absolutely decimate and dominate without any mercy... we will win.
Posted by: Big Daddy | April 1, 2008 10:19 PM
The "They did it too" strategy of sinking to the lowest level your enemy has achieved is futile and immoral Big Daddy.
Posted by: DMan | April 1, 2008 10:30 PM
By that same logic we shouldn't show criminals the "virtue of our constitution." We wouldn't need to give them trials either and we could punish or torture them however we like. the only problem with this (besides reverting to the mideval ages) is that one day, some one might point at you and call you a terrorist. Than you wouldn't get a trial either, and you'd be the one in the stocks. Its everybody or nobody.
Posted by: Anonymous | April 1, 2008 10:43 PM
If we aspire to be like them, and achieve acting like them.... Bigdaddy...how can we call them terrorist?
The 9-11 attacks were meant to shock and awe the United States.
Bushco adopted those practices.
Posted by: yo! | April 1, 2008 10:43 PM
nly one thing to say to that (and not my words - they are 2000 years old, but I can't improve on them- they're still pretty fitting)
"I have been insulted! I have been hurt! I have been beaten! I have been robbed! Anger never ends for those who think like this.
I have been insulted! I have been hurt! I have been beaten! I have been robbed! Anger ends for those who do not think like this.
Quarrels are certainly never settled by enmity. They are settled by freedom from hatred. This is the eternal law.
Others may not understand that we must practice self-control, but strife dies away in those who understand this fact."
Posted by: clp | April 1, 2008 10:45 PM
The idea that torturing on leased property won't reflect poorly on the US, because it isn't on our soil is a most amoral, simple view of a soulless person. And the idea that we can do it to others first, because we just know they would do it to us given the chance is childish and silly, if not immoral or amoral as well. It wouldn't work on your elementary school principal and it doesn't work here. Grow up. We are talking about America here!
Posted by: James E Forbes | April 1, 2008 10:48 PM
Fancy legal footwork by Yoo. The Congress creates the laws by which the military will be required to adhere to the treaty obligations. The Congress has the express authority to legislate the rules by which US military forces will be governed.
It's a red herring to say the President can ignore treaty obligations. Congress can make the laws that govern the military. As Commander-in-Chief the President must make certain those laws are obeyed. He has no authority to override Congress.
Posted by: hewhoasks | April 1, 2008 11:01 PM
Big Daddy,
Don't you understand, we do not want to become like our enemy. If becoming like our enemy worked then the Palestinian/Israeli conflict would have been settled a long time ago and places like Chechneya would be safe and serene.
Just think how you are reacting to the terrorist's tactics. You want to kill and torture. It's a natural reaction, but also one that just generates as much passion and power to do likewise on the other side.
The dark side look appealing and easy, but only the weak give into it.
Don't give into it. It doesn't work and you become what you hate.
Strength is doing the right thing when all around you are doing wrong.
It wins in the end.
Posted by: Scott A. | April 1, 2008 11:12 PM
I always thought that the oath of office was to defend the constitution not to supercede it. This memo puts Bush above all law (according to him), international law and domestic law.
Are all heads of state able to claim the same immunity?
Posted by: Carl L | April 1, 2008 11:22 PM
Two thoughts come to mind.
One: Does this mean the guards convicted as a result of the Abu Grahib scandal can go back to court and say, "The US government said it was 'okay'"?
Two: Why is the government hiding this and other memos that merely tell the world what it already knows: The Bush administration was in favor of torturing people it thought to be "enemy combatants"? It's not like nobody knows this already.
Posted by: Bud McFarlin | April 1, 2008 11:31 PM
What "status as a beacon of human rights around the world?" As more memos are finally forced from the administration's hands, the awful picture only gets clearer. The damage, however, was done long ago. The United States' "status" isn't "threatened"--it's held in utter contempt.
Posted by: Alex S. | April 2, 2008 12:18 AM
Every individual we've tortured has created a thousand enemies. George W. Bush and all who support him have destroyed the divine principles that made our country great. Our children's future has been destroyed because the Bush administration convinced so many that poisoning our American Soul was the only way to escape the fear of death.
Posted by: Mans World | April 2, 2008 12:22 AM
Why shouldn't we torture terrorists if that might help stop an attack against us? And why shouldn't our enemies torture American soldiers if in doing so they might stop an attack against them? I agree with the Bush Administration: it's ok for our soldiers to be tortured, just as long as we get to do it back!
Posted by: JoelTheSecond | April 2, 2008 12:28 AM
John Yoo from South Korea comes to America to apply North Korean principles. His parents should have migrated a few miles north to give him the home he deserved. Would have made an excellent right hand man for Kim Jong.
Posted by: Jack S. | April 2, 2008 12:47 AM
Big Daddy writes "Furthermore, these enemy combatants that you want shown the virtue of our Constitution would NOT show you any rights under any law"
Irrelevant
Posted by: Steve J. | April 2, 2008 1:08 AM
The Bush dictatorship has taken us back to the robber barrrons of the late 1800's and will take 100 yearss to fixx.
Posted by: Joe | April 2, 2008 1:32 AM
* * * * *
Posted by: Mans World | April 2, 2008 12:22 AM
Don’t you think your post is just a little hysterical or hyperbolic? Does one criminal’s violation of the laws “destroy the divine principles that made out country great”? Does one President’s failure to abide by the Constitution destroy our children’s future? Of Course Not!
The President doesn’t have the power to destroy the Constitution or our laws. And when he is no longer President, the next person in office is under no compulsion to follow his example. Indeed, notwithstanding any of Duh’bya’s failures, the next President in office is still under the same constitutional duty to “take Care that the Laws be faithfully executed . . .” (U.S. Const. Art. II, Sec. 3.) Thus, to the extent that Duh’bya’s actions were illegal, the next President will be duty bound not to repeat them.
That we are “a nation of laws, and not men . . . ,” as Chief Justice John Marshall once said, means that the fiber of our legal system depends on our written Constitution, laws and treaties, and not on the arbitrary discretion of individuals. The bottom line is that the principles that made this country a positive example cannot be destroyed because of one man’s, or even a group of men’s, attempt to denigrate them.
Posted by: John W. | April 2, 2008 1:53 AM
So this clears the government of harsh interrogation methods of convicted enemy combatants ... doesn't say anything about suspected. And just exactly how many convicted combatants are there now, anyone... anyone...
Posted by: Ed D | April 2, 2008 2:49 AM
If the US must torture then it should face up and legalize it. Have a doctor be present - just like when they cane people in Singapore. But foremost - be a man about it.
I wonder who were tortured. Where are they now. Dead? So they cannot speak? Were it people that Afghanistan/Pakistan was asked/compensated to deliver? Had they anything to do with 9/11? No wonder that the US abroad is known as the United Bluff.
Posted by: Claus Olesen | April 2, 2008 3:16 AM
Now if we absolutely decimate and dominate without any mercy... we will win.
Posted by: Big Daddy | April 1, 2008 10:19 PM
Win what??? Hearts and minds???
Get real. Ya can't bomb the world...or can you???
Posted by: McBush Family Value$ | April 2, 2008 3:34 AM
Here's a way to test Yoo & Bush's commitment to torture: Let's put electrodes on John Yoo's testicles and light them up. Then, we waterboard him. Then, we use fire hoses of cold water & leave him in a dark room 24 hours a day for a week. THEN, let's see if he still thinks all that is fine. Heck, let's throw in the Bush twins for good measure to see how daddy likes HIS kids treated that way.
Posted by: snalg | April 2, 2008 9:30 AM
Big (?) Daddy,
You're so full of ☁.
Posted by: C.Hussein.Morris | April 2, 2008 9:36 AM
Hey Big Daddy,
The problem with torturing "enemy combatants" is that none of them have been proven to be so. Most of them were just poor shmoes rounded up in sweeps and tossed in prison. They're not guilty of anything and don't have any information to give but we torture them anyway until they tell some lie to get us to stop. Put 'em on trial and produce some evidence and convict them fairly and then punish them. But don't torture them.
Posted by: Mongo | April 2, 2008 9:36 AM
Why is it since 911 the liberal Democrats have defended the enemies of our nation the radical Islamic Jihadists?
Liberals hate President Bush more than they hate Mahmoud of Iran. This is why the Democrats will have trouble come November because what American really thinks they will keep us secure they are too busy worrying if their feelings are being hurt. Why don't Islamist Jihadists like us--because they are animals who kill innocent women and children and are afraid of freedom. But then so are most liberals. They have trouble with our constitution--life, liberty and the pursuit of happiness. Liberals don't like life they are for abortion the culture of death.
They want to restrict our liberties don't drive an SUV or smoke or eat transfats. Telling us what to do with our private property etc.
Lastly, I've never met a liberal Democrat who was happy they are always whining about something or other. Jerry White,. Springfield, IL
Posted by: Jerry White | April 2, 2008 9:41 AM
John Yoo, professing the beliefs about law that he does, obviously does not understand law and is not qualified to be a professor of law.
He should be imprisoned along with the people whom he enabled to commit torture.
Posted by: David Dickinson | April 1, 2008 10:11 PM
David, hopefully you do not know anyone who expired during the 9/11 attacks because if you did, I think you be on board with this type of interrogation. Remember, this type of interrogation is used on US citizens and prisoners of war as well by other countries. Why should we always be the nice guy? Get your head out of your a#@ and try to write something constructive.
Posted by: Linda | April 2, 2008 9:46 AM
We should reconvene the Nuremberg war crimes trials of 1945-46, and put Pres. Bush in the dock alongside German leaders.
Posted by: Antietam | April 2, 2008 10:05 AM
I still, for the life of me, can't understand what is wrong with hugging a tree and why people sling that accusation at others as if they would be insulted. What is wrong with trees? They provide oxygen and shade, are a renewable resource for building materials and paper, and are beautiful to look at. What did they ever do to deserve such scorn?
Posted by: Jim | April 2, 2008 10:12 AM
Let's just hope that all you Liberal idiots out there lose plenty of family members in the next "911", because we weren't allowed to torture enemy combatants.
The FIRST responsibility of our armed forces is to protect American lives, WHATEVER IT TAKES.
Considering that killing enemy combatants in action, as well as whole destruction of enemy strongholds (and all inhabitants) is allowable in war, torture as a "crime against humanity" falls pretty low on the list, don't you think?
I would rather America be known as the "Meanest mother***** in the Valley" instead of "guardian of enemy combatants' rights."
BTW - would one of you explain to us all how the US Constitution applies here?
Posted by: fred doble | April 2, 2008 12:51 PM
Those who advocated and approved these 'above the law' behaviors should themselves be subjected to them as evidence is gathered for their 'crimes against humanity' trials. Worse, they have seriously undermined the citizens faith in the US government and our global standing.
Posted by: William L | April 2, 2008 8:07 PM
WHY is this man Yoo drawing a taxpayer financed salary teaching LAW at Berkeley?
Why is he in this country at all?
He is obviously an enemy of the United States of America.
Posted by: getaclue | April 2, 2008 8:24 PM
"Those who advocated and approved these 'above the law' behaviors should themselves be subjected to them as evidence is gathered for their 'crimes against humanity' trials. Worse, they have seriously undermined the citizens faith in the US government and our global standing."
Posted by: William L | April 2, 2008 8:07 PM
Is that BEFORE or AFTER being proven guilty?
Apparently, you DO advocate the treatment that is ongoing now.
Good for you, Bill.
Posted by: fred doble | April 2, 2008 10:30 PM
What's amazing here is that century's of scientific study that has proved that torture doesn't work,and is counter -productive, has been thrown out the window by a bunch of thugs who spent there youth avoiding the draft.
I don't know about you,but if somebody twisted my balls,I'd tell them I killed jesus christ himself,just whatever you told me I did.
Posted by: crowmd | April 3, 2008 12:30 AM
professor yoo indeed sounds like one of the german legal scholars that wrote the various twisted enabling laws during the nazi period. going in that direction of permitting torture for some short term gain of averting a catastrastophe: let us go back to the year prior to 9/11: those were "enemy combatants" [Allah's Army? religious fantatics]: would you automatically torture Atta if you picked him up on a traffic violation in Florida: implict in Yoo's madness is that the floodgates open. Yoo is a poor man's Jesuit when it comes to law. That the Government under Bush had to take the time and honor consuming route of torture and Guanatmo speaks ill of them. That Bush and Cheney with all their lying crimes are still head of the government speaks ill of the congress and the American people.
Posted by: michael roloff | April 3, 2008 1:34 AM
Some of you Republicans are barbarians! I'm just awaiting the future war crimes trials for the Bush administration and cohorts.....whistle, whistle...I'm waiting!
Posted by: Kari | April 3, 2008 3:06 AM