Posted by: zanshin, 2008-04-01 11:53

Story

’03 U.S. Memo Approved Harsh Interrogations
MARK MAZZETTI, 2008-04-02 (Wednesday), NY Times
WASHINGTON — The Justice Department in 2003 gave military interrogators broad authority to use extreme methods in questioning detainees and argued that wartime powers largely exempted interrogators from laws banning harsh treatment, according to a memorandum publicly disclosed on Tuesday.

In a sweeping legal brief written in March 2003, when the Pentagon was struggling to determine the appropriate limits for its interrogators, the Justice Department gave the Pentagon much of the same authority it had provided to the Central Intelligence Agency in a memorandum months earlier. Both memorandums were later rescinded by the Justice Department.

The disclosure of the 2003 document, a detailed 81-page opinion written by John C. Yoo, who at the time was the second-ranking official at the Office of Legal Counsel at the Justice Department, is likely to fuel the already intense debate about legal boundaries in the face of a continuing terrorist threat.

Mr. Yoo’s memorandum is the latest document to illuminate the legal foundation that Bush administration lawyers used after the attacks of Sept. 11, 2001, to give the White House broad powers to capture, detain and interrogate suspects around the globe.

The thrust of Mr. Yoo’s brief has long been known, but its specific contents were revealed on Tuesday after government lawyers turned it over to the American Civil Liberties Union, which has sought hundreds of documents from the Bush administration under the Freedom of Information Act.

Some legal scholars said Tuesday that they were amazed at the scope of the memorandum.

“This is a monument to executive supremacy and the imperial presidency,” said Eugene R. Fidell, who teaches military justice at Yale Law School and the Washington College of Law at American University. “It’s also a road map for the Pentagon for fending off any prosecutions.”

The memorandum gave the military broad latitude to use harsh interrogation methods. It reasoned that federal laws prohibiting assault were not applicable to military interrogators dealing with members of Al Qaeda because of White House authority during wartime. It also argued that many American and international laws would not apply to interrogations overseas.

“Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context,” it reads.

Justice Department lawyers later rescinded both Mr. Yoo’s memorandum and the similar one written for the C.I.A. in August 2002. In a book published last year, Jack Goldsmith, who as head of the Office of Legal Counsel made the decision to rescind the memorandums, criticized the documents, saying they had used careless legal reasoning to provide national security agencies with sweeping interrogation authority.

Written to William J. Haynes II, who at the time was the Pentagon’s general counsel, Mr. Yoo’s document was meant to give legal guidance to Defense Department lawyers as they wrestled with a list of interrogation methods for prisoners at the military prison at Guantánamo Bay, Cuba.

The document explains that Mr. Haynes had asked the Justice Department “to examine the legal standards governing military interrogations of alien unlawful combatants held outside the United States.”

The Pentagon was trying to set clear guidelines for military interrogators after Donald H. Rumsfeld, the defense secretary at the time, withdrew approval for some interrogation techniques opposed by some senior military lawyers.

Ultimately, Mr. Yoo’s memorandum provided the legal foundation for the group’s final report, which defended the use of harsh interrogation methods.

Similar to the document written for the C.I.A. in August 2002, Mr. Yoo’s memorandum offered a narrow definition of what constitutes torture.

“The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result,” Mr. Yoo wrote.

Despite the wide latitude the document gave to the military, the Pentagon never authorized some of the harshest interrogation methods used by the C.I.A., including waterboarding, a simulated drowning technique.

Amrit Singh, a lawyer for the American Civil Liberties Union, said that the Yoo memorandum seemed to give military interrogators “carte blanche” to use any techniques and suggested that it was the legal underpinning for abuses that occurred months later at the Abu Ghraib prison in Iraq.

No Pentagon investigations have found that any senior Bush administration officials were complicit in the abuse at Abu Ghraib.

The investigations did find, however, that for several years after the Sept. 11 attacks, the Pentagon failed to set uniform standards for military interrogations worldwide.

Martin S. Lederman, a former lawyer for the Office of Legal Counsel who now teaches at Georgetown University, noted Tuesday night on the legal blog Balkinization that Mr. Yoo’s memorandum was issued on a Saturday one day after his boss, Jay S. Bybee, left the Justice Department.

Some legal experts and civil liberties groups have for years criticized the August 2002 memorandum written for the C.I.A. as overly expansive in the authority it gave the agency to interrogate detainees.

That memorandum was also written by Mr. Yoo, who is now a law professor at the University of California, Berkeley, but it was signed by Mr. Bybee and for several years has been commonly known as the Bybee memo.

It was prepared after an internal debate in the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden’s top aides, after his capture in April 2002.

The document provided a legal foundation for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, who is believed to be the chief architect of the Sept. 11 attacks and was captured in early 2003.

The Detainee Treatment Act passed by Congress in 2005 required the Defense Department to restrict interrogation methods to those set out in the Army Field Manual, which bans coercive interrogations.

Last year, President Bush issued an executive order narrowing the list of approved techniques for the C.I.A. Intelligence officials have said that waterboarding is not on the list of currently approved techniques but that President Bush could authorize its use during an emergency.

Scott Shane contributed reporting.

Copyright 2008 The New York Times Company

Comments


zanshin on 2008-04-01 11:56

Word of the Article: rescinded

Rescinded

Re*scind"\ (r?-s?nd"), v. t. [imp. & p. p. Rescinded; p. pr. & vb. n. Rescinding.] [L. rescindere, rescissum; pref re- re- + scindere to cut, split: cf. F. rescinder. See Shism.]

1. To cut off; to abrogate; to annul.

The blessed Jesus . . . did sacramentally rescind the impure relics of Adam and the contraction of evil customs. --Jer. Taylor.

2. Specifically, to vacate or make void, as an act, by the enacting authority or by superior authority; to repeal; as, to rescind a law, a resolution, or a vote; to rescind a decree or a judgment.

Syn: To revoke; repeal; abrogate; annul; recall; reverse; vacate; void.


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Tags

Abu Ghraib,   ACLU,   Al-Qaeda,   Alberto Gonzales,   Bush,   CIA,   Cuba,   Donald Rumsfeld,   Guantanamo Bay,   Impeachment,   Iraq,   Jay Bybee,   John Yoo,   military,   Terrorism,   Torture,   USA,   War On Terror,   William Haynes,  

Related statements

Date  
2007 In the United States, Jack Goldsmith, who as head of the Office of Legal Counsel made the decision to rescind the memorandums, criticized (in a published book) the documents, saying they had used careless legal reasoning to provide national security agencies with sweeping interrogation authority.
2007 In the United States, Jack Goldsmith, who as head of the Office of Legal Counsel made the decision to rescind the memorandums, criticized (in a published book) the documents, saying they had used careless legal reasoning to provide national security agencies with sweeping interrogation authority.
2003-12 The memo of John C. Yoo, second-ranking official at the Office of Legal Counsel at the United States Justice Department, written to William J. Haynes II, the Pentagon’s general counsel, is rescinded by the Justice Department
2003-03-14 “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”
-- John C. Yoo, second-ranking official at the Office of Legal Counsel at the United States Justice Department, in a memorandum written to William J. Haynes II, the Pentagon’s general counsel
2003-03-14 In a sweeping legal brief, a detailed 81-page opinion written by John C. Yoo, who at the time was the second-ranking official at the Office of Legal Counsel at the Justice Department, The Justice Department gave military interrogators broad authority to use extreme methods in questioning detainees and argued that wartime powers largely exempted interrogators from laws banning harsh treatment.
2002-08-01 The Yoo-Bybee Memo 'redefnes' torture
A legal opinion of the Justice Department gave Central Intelligence Agency broad authority to use extreme methods in questioning detainees.

This legal opinion was written by two lawyers in the Justice Department’s Office of Legal Counsel: Jay Bybee and John C. Yoo (who at the time was the second-ranking official at the Office of Legal Counsel at the Justice Department)
The memo was addressed to Alberto Gonzales.

The Yoo-Bybee Memo declared that physical torture occurred only when the pain was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” and that mental torture required “suffering not just at the moment of infliction but … lasting psychological harm.” Interrogations that did not reach these thresholds—far less stringent than those set by international law—were allowed.

Nothing in the memo suggested that its use was limited to the C.I.A.; it referred broadly to “the conduct of interrogations outside of the United States.”

Later it would become known that Yoo and Bybee were assisted in the drafting by David Addington, then the vice president’s lawyer.

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2008-03-03President Addresses Joint Armed Forces Officers' Wives' Luncheon
2008-02-24Strategy and the Limitation of War
2008-04-28Latin America: the attack on democracy
2008-04-04Interview: Lee Kuan Yew -- Part 1
2008-03-24Chalmers Johnson: “Nemesis: The Last Days of the American Republic”
2008-06-11The History of the House of Rothschild
2008-05-05Exhaustive review finds no link between Saddam and al Qaida
2008-05-17Planned US Israeli Attack on Iran: Will there be a War against Iran?
2008-05-27A violent episode in the virtual world
2008-05-27Was it like this for the Irish? -- Gareth Peirce on the position of Muslims in Britain
2007-11-01From the Desk of Donald Rumsfeld . . .
2007-11-04The Butcher with the Terror Ties -- The evidence mounts
2007-11-04While Pakistan Burns
2007-11-06Is a Presidential Coup Under Way?
2007-11-06President Bush Discusses Global War on Terror
2007-11-06Keith Olbermann's Special Comment on Waterboarding and Torture
2007-09-25The Irrational Drama of a Declining Empire
2007-09-24Betrayed -- The Iraqis who trusted America the most
2007-10-02A Tale of Extraordinary Renditions and Double-Standards -- THE FORGOTTEN PRISONER
2007-10-03The Pentagon Preps for Iran
2007-10-04Iran Is Found To Be a Lair of Al Qaeda - Intelligence Estimate Cites Two Councils
2007-10-04Open Fire
2007-10-05George Bush defensive over US torture claims
2007-10-05Drum beaters for Iran war should think again
2007-12-07C.I.A. Destroyed 2 Tapes Showing Interrogations
2007-12-07Jacob's Jottings: NIE Madness
2007-11-21Invade Pakistan? -- Are they kidding?
2007-11-22Fool Me Once . . .
2007-11-20The Neoconservative Moment
2007-11-11The Next Act -- Is a damaged Administration less likely to attack Iran, or more?
2007-11-11In the Wake of War: Geo-strategy, Terrorism, Oil Markets, and Domestic Politics
2007-11-12The “Stab in the Back” Trap
2008-01-01Jihadists in Jails Win Leverage Over Their Keepers
2008-01-02How to Defuse Iran
2007-12-22Gates offers hope of Iraq withdrawals
2007-12-14Bush Administration Says Prominent Muslim Scholar Can’t Teach in the US Because He Donated to Palestinian Charity
2007-12-15Why We Should Oppose an Independent Kosovo
2008-11-23The American Mission?
2008-11-17Clinton Is The WorId's Leading Active War Criminal
2008-12-03Right at the Edge
2008-12-03Symposium: Iran: The Countdown
2008-11-11The Case for Restraint -- Foreign policy after George W. Bush
2008-11-05Are You a 'Violent Extremist'? FBI's Analytical Lexicon Lowers the Bar
2008-11-07Country Reports on Terrorism -- Chapter 2 -- Country Reports: Middle East and North Africa Overview
2008-11-07Italy PM to press state secrecy in CIA rendition trial
2008-11-10Fighting the real fight
2008-08-25Statement from George J. Tenet
2008-08-29Previously secret torture memo released
2008-08-28Ex-CIA agent: Waterboarding 'saved lives'
2008-09-02Can The War On Terror Be Won? -- How To Fight The Right War
2008-09-02A modern Pandora
2008-09-07Terrorized by 'War on Terror'
2008-09-26Copenhagen Consensus 2008 Challenge Paper Terrorism
2008-09-23Psychologists Vote to End Interrogation Consultations
2008-09-23Prosecuting High-level Americans for War Crimes
2008-09-20How We Misunderstand Terrorism
2008-09-20For prosecution of Bush war crimes, planning begins
2008-09-12The Return of U. S. Death Squads
2008-09-12The Red White and Blue Roots of Terrorism
2008-09-17U.S. Embassy in Yemen Attacked
2008-10-11America and Political Islam: Clash of Cultures or Clash of Interests?
2008-10-11Major shock: Eavesdropping powers abused without oversight
2008-10-24The World Around Russia: 2017 -- An Outlook for the Midterm Future
2008-07-10Day 1: America's prison for terrorists often held the wrong men