Torture Memos

The term "torture memos" was originally used to refer to three documents prepared by the Office of Legal Counsel at the United States Department of Justice and signed in August 2002: "Standards of Conduct for Interrogation under 18 U.S.C.

These include a December 2, 2002, internal Department of Defense memo signed by Donald Rumsfeld, then secretary of defense, authorizing seventeen techniques in a "Special Interrogation Plan" to be used against the detainee Mohammed al-Qahtani;[2] a March 13, 2003, legal opinion written by John Yoo of the Office of Legal Counsel, DoJ, and issued to the General Counsel of Defense five days before the U.S. invasion of Iraq started, concluding that federal laws related to use of torture and other abuse did not apply to agents interrogating foreigners overseas;[3] and other DoD internal memos authorizing techniques for specific military interrogations of certain individual detainees.

In 2005, Alberto Gonzales testified before Congress that the CIA sought the 2002 opinion after having captured Abu Zubaydah in 2002, who was then believed to be a significant al-Qaeda figure who could provide important information to U.S. efforts to constrain and prevent terrorism.

"[7] Jay Bybee, then assistant U.S. attorney general and head of the OLC, addressed a memorandum to Alberto Gonzales,[8] then counsel to the president, dated August 1, 2002, titled "Standards for Conduct for Interrogation under 18 U.S.C.

After reviewing a number of torture-related cases in the U.S., in which victims were subjected to beatings, burning, electric shocks, and the threat of such actions, it states that, "we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate the law."

It discusses two cases: Part five of the memo analyzes constitutional law as to whether the statute passed by Congress infringes on the powers of the president to conduct war, and concludes that it is unconstitutional.

Those facts, according to the top secret memorandum, are that Abu Zubaydah was being held by the United States, and that, "[t]he interrogation team is certain that he has additional information that he refuses to divulge" regarding terrorist groups in the U.S. or Saudi Arabia planning attacks in the U.S. or overseas.

The memo closes this section reminding the reader of the refusal of the U.S. to accept the jurisdiction of the ICC, and that, "[a]lthough the Convention creates a [c]ommittee to monitor compliance, [the committee] can only conduct studies and has no enforcement powers."

[18] Yoo concludes the letter by stating, "It is possible that an ICC official would ignore the clear limitations imposed by the Rome Statute, or at least disagree with the President's interpretation of [the Geneva Convention].

In 2008, leaders of the Senate Intelligence and Armed Services committees concluded that the memo was used by the DoD to "justify harsh interrogation practices on terror suspects at Guantánamo Bay" and the Abu Ghraib torture and prisoner abuse.

[3] After Bybee resigned from the Department of Justice in March 2003 for a federal judgeship in Nevada, Attorney General Ashcroft vetoed the White House's choice of John Yoo as his successor.

A professor at the University of Chicago Law School before entering government service, he had previously been legal adviser to William Haynes, the general counsel of the Department of Defense.

§§ 2340–2340A"[20] written by Daniel Levin, acting assistant attorney general, Office of Legal Counsel, rolled back the narrow definition of torture in the memos.

[34][35][36] On January 15, 2009 Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001,[37] Steven G. Bradbury, Acting head of the OLC from 2005 to January 20, 2009, during the Bush administration, stated, We have also previously expressed our disagreement with the specific assertions excerpted from the 8/1/02 Interrogation Opinion: The August 1, 2002, memorandum reasoned that "[a]ny effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President."

§§ 2340–2340A, is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation of detainees conducted pursuant to the President's Commander in Chief authority.

[40] Shortly afterward, he said that his administration would prosecute neither the authors of the memos nor those CIA or DoD personnel or contractors who carried out the acts described in them in the belief they were legal.

Bybee signed the legal memorandum that defined "enhanced interrogation techniques" (including waterboarding), which are now regarded as torture by the Justice Department,[43] Amnesty International,[44] Human Rights Watch,[45] medical experts,[46][47] intelligence officials,[48] military judges,[49] and American allies.

[50] In 2009, Spanish judge Baltasar Garzón considered conducting a war crime investigation against Bybee and five other Bush administration figures,[51] but the Attorney General of Spain recommended against it.

"[55] John Yoo was later harshly criticized by the Department of Justice for failing to cite legal precedent and existing case law when drafting his memos.

[52] In particular, the 2009 DOJ report chastises Yoo for failing to cite Youngstown Sheet & Tube Co. v. Sawyer, a seminal 1952 case on the powers of the Executive in times of war.

[52] In its 261-page final report, the OPR concluded that the legal opinions that justified waterboarding and other interrogation tactics for use on Al Qaeda suspects in United States custody amounted to professional misconduct.

[56]: 251–254 However, in a memorandum dated January 5, 2010, to Attorney General Eric Holder, David Margolis, the top career Justice Department lawyer who advises political appointees,[57] countermanded the recommended referral.

[60][61][62][63] On February 26, 2010, The New York Times reported that the Justice Department had revealed that numerous e-mail files were missing in relation to the decisions of that period and had not been available to the OPR investigation.

[65] In 2009, Philip D. Zelikow, the former State Department legal adviser to Condoleezza Rice, testified to the Senate Judiciary Committee, It seemed to me that the OLC interpretation of U.S. constitutional law in this area was strained and indefensible.

In his column in the Los Angeles Times Scheer wrote, "Was it as a reward for such bold legal thinking that only months later Bybee was appointed to one of the top judicial benches in the country?"

He wrote, "The Bybee memo is not some oddball exercise in moral relativism but instead provides the most coherent explanation of how this Bush administration came to believe that to assure freedom and security at home and abroad, it should ape the tactics of brutal dictators.

"[68] In 2005, testimony to Congress, Harold Hongju Koh, dean of the Yale Law School and former assistant secretary of state for democracy, human rights, and labor in the Bill Clinton administration, called the August 1, 2002 memo "perhaps the most clearly erroneous legal opinion I have ever read," which "grossly overreads the president's constitutional power.

"[69] On March 9, 2006, after emerging from a closed talk at Harvard Law School sponsored by the student chapter of the Federalist Society, Bybee was confronted by around thirty-five protesters.

[78] In an April 25, 2009, Washington Post article, Patrick J. Leahy (D-VT), chairman of the Senate Judiciary Committee, is quoted: "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," adding that "the decent and honorable thing for him to do would be to resign [from the U.S. Court of Appeals for the 9th Circuit]".

[80] Judge Betty Fletcher, a member of the United States Court of Appeals for the Ninth Circuit for thirty years until her death in 2012, is quoted from a statement regarding Bybee: He is a moderate conservative, very bright and always attentive to the record and the applicable law.