Pentagon memo approved use of torture against terror suspects

The Pentagon has released a legal memorandum that approved the use of harsh interrogation techniques against terror suspects on the grounds that President Bush's authority during wartime overrode any international ban on torture. The justice department memo, dated Mar. 14 2003, outlines legal justification for military interrogators to use harsh tactics against al-Qaida and Taliban detainees overseas so long as they did not specifically intend to torture their captives. It argues that poking, slapping or shoving would not give rise to criminal liability, and also appears to defend the use of mind-altering drugs that do not produce "an extreme effect." But even if an interrogator harmed a detainee in a way prohibited as torture under international law they would not be criminally liable because, the memo argues, the president's wartime power as commander in chief is not limited by UN and other international treaties against torture. "Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion," said the memo written by Berkeley law professor John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel. "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," the memo concluded. The memo was rescinded in December 2003, nine months after Yoo sent it to the Pentagon's top lawyer, William J. Haynes. Although its existence has been known for years, its release marked the first time its contents in full have been made public. Haynes, the defense department's longest-serving general counsel, resigned in late February to return to the private sector. He has been criticized for his role in crafting Bush administration policies for detaining and trying suspected terrorists that some argue led to prisoner abuses at the Guantanamo Bay detention center. Yoo's memo became part of a debate among the Pentagon's civilian and military leaders about what interrogation tactics to allow at overseas facilities and whether US troops might face legal problems domestically or in international courts. Also of concern was whether techniques used by US interrogators might be used as justification for harsh treatment of Americans captured by opposing forces. The declassified memo was released as part of an American Civil Liberties Union lawsuit to force the Bush administration to turn over documents about the government's war on terror. The document also was turned over to lawmakers. Justice department spokesman Brian Roehrkasse said its release "represents an accommodation of Congress's oversight interest in the area of wartime interrogations." Jameel Jaffer, director of the ACLU's national security project, said Yoo's legal reasoning puts "literally no limit at all to the kinds of interrogation methods that the president can authorize." "The whole point of the memo is obviously to nullify every possible legal restraint on the president's wartime authority," Jaffer said. "The memo was meant to allow torture, and that's exactly what it did." The 81-page legal analysis largely centers on whether interrogators can be held responsible for torture if torture is not the intent of the questioning. And it defines torture as the intended sum of a variety of acts, which could include acid scalding, severe mental pain and suffering, threat of imminent death and physical pain resulting in impaired body functions, organ failure or death. The "definition of torture must be read as a sum of these component parts," the memo said. The memo also includes past legal defenses of interrogations that Yoo wrote are not considered torture, such as sleep deprivation, hooding detainees and "frog crouching," which forces prisoners to crouch while standing on the tips of their toes. "This standard permits some physical contact," the memo said. "Employing a shove or slap as part of an interrogation would not run afoul of this standard." The memo concludes that foreign enemy combatants held overseas do not have defendants' rights or protections from cruel and unusual punishment that US citizens have under the Constitution. It also says that Congress "cannot interfere with the president's exercise of his authority as commander in chief to control the conduct of operations during a war."