By Kenneth J. Theisen
After years of litigation, the infamous Department of Justice (DOJ) “torture memo” has been made public by the Bush regime. The 81-page
memo, written by John Yoo, then a deputy at the DOJ’s Office of Legal
Counsel (OLC), was sent to the Defense Department’s top lawyer, William
J. Haynes, in March 14, 2003.
This memo asserted that the President
has unlimited power to order brutal interrogations to extract
information from detainees. According to Yoo, “[O]ur previous opinions
make clear that customary international law is not federal law and that
the president is free to override it at his discretion.” Under the Bush
regime, international law prohibiting torture was ignored. Thousands
of prisoners have been and continue to be routinely abused and tortured
in U.S. run prisons around the world. This memo was used to legally
“justify” these crimes.
The memo was declassified on April 1st as a result of an American Civil Liberties Union (ACLU) Freedom of Information Act lawsuit. According to ACLU staff attorney Amrit Singh, “[S]enior officials at the Justice Department gave the Pentagon the green light to torture prisoners. It is outrageous that none of these high-level officials have been brought to task yet for their role in authorizing prisoner abuse.”
This memo was not an aberration. Another OLC memo asserting the same kind of unchecked executive authority was sent to the CIA in August 2002. In that now-notorious document, torture was defined so narrowly that it encompassed only those methods that result in pain akin to that associated with “death, organ failure or the permanent impairment of a significant body function.” All other methods of “harsh interrogation” were not considered to be torture.
The just-released memo parrots the advice previously given to the CIA. But the 2003 memo goes even further in its assertion of expansive presidential powers. It claims that during wartime, the president’s Commander-in-Chief power overrides the due process guarantee of the Fifth Amendment and other Constitutional rights and protections.
“The memo shows that the same disgraceful legal analysis that was at the root of the CIA’s illegal interrogation program was also at the root of the Defense Department’s program,” said Jameel Jaffer, Director of the ACLU National Security Project. “The memo takes an extremely broad view of the president’s power as Commander-in-Chief. If you believe this memo, there is no limit at all to the kinds of interrogation methods the President can authorize.” Jaffer stated Yoo’s rationale 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. The memo was meant to allow torture, and that’s exactly what it did.”
In the memo, John Yoo writes: “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.” In other words Yoo argues torturers have immunity from prosecution for torture as long the President says it is necessary to protect national security.
Yoo further concludes that foreign enemy combatants held overseas are not protected from cruel and unusual punishment supposedly guaranteed by the Constitution. Yoo, in his expansive view of executive power, dismisses the role of Congress saying that it “cannot interfere with the president’s exercise of his authority as commander-in-chief to control the conduct of operations during a war.” But during the Bush regime, Congress has generally gone along with Bush. It has “legalized” many of the regime’s illegal acts, from massive spying programs to unleashing aggressive wars. It has funded these wars which have resulted in the capture of tens of thousands of “enemy combatants.”
The Yoo memo reveals the development of interrogation methods for use at Guantánamo Bay and other hellholes run by the Bush regime. In a recently published book, “Administration of Torture,” ACLU attorneys Jaffer and Singh reveal that a Defense Department working group convened by then-Secretary of Defense Donald Rumsfeld was given the March 2003 Yoo memo and told that it should regard the memo as “definitive guidance.” Relying on the Yoo memo, the working group ultimately endorsed “harsh interrogation methods,” which violated U.S. and international law. Rumsfeld relied on the working group memo to authorize a new interrogation directive for use at Guantánamo Bay. General Geoffrey Miller, who was in charge of Guantánamo, was later sent to Iraq to encourage the adoption of torture methods there, including at Abu Ghraib prison.
The released memo confirms that the justification of torture practiced by the regime goes to the very top of the regime. But as “our leaders” in Congress have made clear they will not hold anyone in the regime accountable. And even though the regime claims that this memo is no longer operative, torture continues. More than 50,000 prisoners of the so-called “war on terror” are currently held by the U.S. or its allies. Prisoners face torture, rape, and death in these hellholes. What will you do to halt these crimes against humanity?
Ken Theisen is a veteran activist of movements opposing U.S. imperialism, its wars and domination of countries throughout the world, and an advocate against domestic violence in the San Francisco Bay Area.
The entire Yoo memo can be found online at: www.aclu.org/safefree/torture/34745res20030314.html
In “Administration of Torture ,” Jaffer and Singh detail how interrogation practices sanctioned at the highest levels of the Bush regime led to the system abuse and torture of prisoners in U.S. custody. More information about the book is available online at: www.aclu.org/administrationoftorture