Declassified memo authorized US to torture "enemy combatants"

Here's a declassified copy of one of the 2003 "Yoo Memos" issued by William J. Haynes II, General Counsel of the Department of Defense and written by John C. Yoo, then a deputy, in which they argue that torture of foreign nationals is lawful provided that it takes place offshore and that they are "enemy combatants" (whatever that means). It was rescinded after nine months.
Sent to the Pentagon's general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department's Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers.

"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."

PDF link to memo, Washington Post article (Thanks, Rick)

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  1. As far as I understand it if this memo was used as a justification of torture then the people that ordered it are war criminals and can be detained for trial by any citizen of the world.

  2. Johnson is right. Yoo and his torturing superiors are now liable to arrest trial and imprisonment in any country which chooses to enforce the Laws against the use of torture. Those Laws forbid precisely this type of justification… the Law against Torture is as strong as people can make it, and the Bush Regime is relying on “Patriotism” to protect itself. The Law also provides for occasions where the State involved does not itself prosecute for political reasons. Bush should be impeached and jailed for a long time, or should be prosecuted once he’s out of office, as there is no Statute of Limitations on this most horrible of crimes (torturing a prisoner, someone at your mercy, to death).
    Why no Congressional Action? Do they approve of torture? If so why the fuck don’t Americans speak up?

  3. It goes beyond treaties on torture, Yoo suggests that any treaties are ignorable by the president during wartime. And we’re in a perpetual “wartime” under Bush’s definition.

    It also means that we’ll need new rules for trials that include evidence gained by torture. Which means that other nations can justifiably torture our troops, use that evidence against them, or any other American, and sentence them based on that.

    That actually happened to John McCain. Of course, when the spine check came, he voted for Bush’s torture plan.

    And still, this has yet to shock the conscience of a significant amount of Americans. God we’re so incredibly apathetic.

  4. What should shock the conscience of americans is that the Dem majority they elected promising to end the war ihas proven by its inaction to be pro-war. Their Pres. candidates compete as to who would increase military spending more.

  5. They like the various people in the CIA involved in the Italian kidnapping or torture, will not be able to travel overseas since they are likely to be arrested and tried in the Hague.

  6. “Any presidential decision to order interrogation methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions.”

    p.47

    WTF? Anarchists in the White house. CAT is the UN anti torture bit FYI. It would be a surprise to find the above as dictum in any court of law.

  7. #1 and #2:

    Well, there’s a reason the U.S. has worked to systematically undermine the International Criminal Court.

    It would be fun to see these guys arrested. I think most countries are more sensible than that, though. (Pat the giant and try not to make it angry in case it does something incredibly stupid.)

  8. Wow, ok, I’m just skimming throuh, but part III makes for very disturbing reading. Part of the argument is that the ICC is toothless, so don’t worry about it, for instance. I swear, you never know whether to laugh or cry.

    Apparently, Bolton withdrew the US from the ICC treaty in 2002, however. This Yoo character may be the most cynical man on earth, but he might indeed have a legal argument, which is no credit to the law.

  9. Actually, in International law, there’s a long history of ignoring treaty obligations in time of war or other national emergency.

    Obviously its arguable, for some anyway, whether this memo authorizes “torture” or whether it was ever used — since many seem to believe terrorists over our own folks.

    You pay your rent until you can’t afford food, then you buy food and pay as much rent as you can when times get tough. Consequences will follow. The main deterrence in anti-torture treaties is that our own folks will be tortured if we don’t follow it. Seeing as we are the only ones who have ever followed Geneva in its history and our people have been beheaded, paraded, kidnapped, and had their bodies desecrated I’d say the deterrence factor is nil.

    Congress — the Democratic Congress could outlaw any version of torture it wanted to. They haven’t. Why? Two things: most don’t really think some of these things are really torture and 2 — they work. Real torture doesn’t work, but intense questioning is good for almost a day before info becomes stale. At least ask the questions before succumbing to Bushitler McChimpy Derangement Syndrome.

  10. Sorry to keep commenting but p 48 footnote? In which he argues first that terrorists are in fact combatants and so torturing them is not a crime against humanity as per the ICC definition, then next that they are not combatants and so torturing them is not a crime under the geneva conventions? Priceless. Shrodinger’s terrorist.

  11. Do we know for a fact that Yoo isin’t a “chicom” on a mission to undermine us from within?

    Gotta love that old timey phrase…”Chi-Com”.

    Seriously though, someone please lock these freaks up and throw away the key.

  12. Troy,

    The Reagan administration determined that CAT’s definition of torture was consistent with ”United States and international usage, [where it] is usually reserved for extreme deliberate and
    unusually cruel practices, for example, sustained systematic beatings, application of electric
    currents to sensitive parts of the body and tying up or hanging in positions that cause extreme
    pain.”

    p50.

    So yea, the memo was probably used, seeing as there is photographic evidence of the us army using the precise examples of torture given by the executive branch in law.

  13. @11 Congress — the Democratic Congress could outlaw any version of torture it wanted to. They haven’t. Why?

    Actually, Congress did pass a law requiring the government to adhere to the US Military Code regarding torture (which is essentially the same as banning it). It passed 51-45 in the Senate.

    Bush vetoed the bill.

    The Democratic Congress does not have enough of a majority in the Senate to override a veto. The GOP is far more accountable here since they vote in lockstep and apparently do not have principles beyond GOP uber alles.

    It should be further noted that McCain, the guy running on his tortured soldier history, voted against the bill, voted for torture.

  14. This might be an irrelevant question, but what are the policies of other superpowers (China, Russia, India, EU) toward torture? Is there a web site that lists these somewhere, and who watches the watchers?

  15. To hell with Goodwin. Heil Bush! (might as well start practicing…)

    Seriously, could anyone explain, what are the remaining differences that distinguish this approach to national security from the mindset of the Waffen-SS and Gestapo?

  16. What people might not realize is that because nobody ever calls Congress even just 10 calls to an office about the same subject on the same day is A HUGE ZOMG EMERGENCY to them.

    So seriously. Stop throwing your hands up in the air, and pick up the phone. Start at this website:

    http://www.house.gov/

    Use the tools at the top to find your Representative. Locate the phone number on your Representative’s web page under “Contact.”

    Call the number.

    Tell them:

    “This is so-and-so from such-and-such town. I feel xyz. Thank you.”

    I’m willing to be there’s a few hundred thousand anti-torture Americans who read this blog in a day. If you all made the phone call, your Congress Critters would poop in their pants. Poop.

  17. noone watches the watchers. In fact, there aren’t particularly any watchers. I’ve read about ten pages of the memo and am currently fighting a strong inclination to hide under a blanket for the rest of the day.

    As far as these things go, the Eu is pretty good, in so much as Eu human rights law is supreme [even if it is nearly impossible for a case to go that far], but also it has never seriously been tested.

    will anyone opine what “specific intent” means as a requisite for torture? Is that to exclude acts of accidental infliction of suffering? Or is it to say, an act which inflicts pain or suffering, but is not limited in its intent to the infliction of pain or suffering insomuch as it was intended to extract information is ok?

  18. TWG: it is irrelevant to the behaviour of the United States, but it is still an important question as to what other major powers are doing. A lot of information can be found on the Human Rights Watch website. For example, some info on the EU.

    With regard to the memo itself, the first few pages are essentially an argument that the President of the United States in his role as Commander-in-Chief is above the law with regard to any actions taken at his command so long as they are outside the territorial bounds of the United States.

    Although it talks a lot about war, the memo also suggests that no formal declaration of war, nor the explicit approval of Congress is required for the President to exercise his powers as Commander-in-Chief. It makes reference to a number of historical cases where the President did do things that would normally be considered violations of the Constitution, but were ruled otherwise because they were done by the military at Presidential order outside of US territory.

    This to me is the most chilling thing about the document: it claims not only that the President is not bound by international treaties or international law. It claims that the President is not bound by the Constitution when acting in his capacity as Commander-in-Chief, and seems to argue that he can act in that capacity at any time and for any reason if he claims that the security of the United States is at risk.

    Note that he does not have to prove or even make plausible the claim that the security of the United States is at risk. He just has to make the claim, and there is, according to the constitutional interpretation the memo gives, no body that is charged with or granted the legal power to review or pass judgement on that claim.

    This interpretation would place the President effectively and entirely above the law with respect to actions taken by the military, even against American citizens, even within the United States. The memo does not quite go there, but there is nothing in the logic to prevent it. Fortunately, there is a great deal in American social and legal history that will at the very least slow the process down.

  19. There are days I’m ashamed to be a US citizen, and US citizens I’m ashamed are allowed to claim citizenship.

  20. Apparently, Bolton withdrew the US from the ICC treaty in 2002, however

    Actually we were never in it. Clinton signed the ICC treaty, but intentionally never submitted it to the Senate for ratification. Bush later “unsigned” it.

  21. Unbelievable arrogance! And (some) Americans wonder why their country is feared and hated across much of the world.

    But then again, we (Brits) did firebomb Dresden, and toy with Anthrax during WW2. But then yet again, that was a real war, not a hysterical over-reaction to a single terrorist incident.

  22. The difference between what the GOP have done and what the Nazis did seems to be:

    A: The Nazis suppressed free speech first;

    B: The Nazis militarised their domestic police first;

    C: The Nazis only wished to dominate much of Western Europe.

  23. Padster, that was before the geneva conventions, which were probably the only good thing to come out of WWII. RIP conventions. We hardly [never?] knew thee.

    As a side note, something I’ve recently discovered from living in the us, if you innocently point out that there is no English word to describe someone specifically from the us, they get really indignant. I say innocently, but now I bring it up as a social experiment to see how people react.

    To be fair here, the memo was revoked some years ago. What I wonder is what possible legitimate reason is there to classify legal counsel? It doesn’t make sense.

  24. #20 Tom: >> that he can act in that capacity at any time and for any reason if he claims that the security of the United States is at risk

    One can’t repeat the quote too often:

    Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country. — Hermann Göring at the Nuremberg trials

  25. and don’t forget the US is the country which spent a significant portion of the eighties terrified of the supreme military might of…wait for it…Nicaragua. Funny how people without a pot to piss in are simultaneously people with a technology so advanced that if not for pre-emptive action they could rock the freedom loving foundation of the United states to the core.

  26. I’m no lawyer, you can tell by the time stamp, but, this is a tricky situation. Do the law’s of this nation end at the waters edge? Do we, as a nation project our laws on those that live in another land? If the latter is true then are we nation building? Should our troops try to live like the people of whatever land they are in at the moment?

    Japan and, to a lesser extent Germany, were brought fully into the twentieth century in the aftermath of WWII. Should we have a one world government, with all of the countries having the exact same laws? What about the customs of these countries, should they be considered equal? We’ve got children being disfigured in some countries, we’ve got children being raped in order to “cure” HIV in other countries. We’ve got Muslim women being raped and then being stoned to death because they showed an ankle. Is that equal to our putting a murderer to death for killing others?

  27. Scottfree @25 – “As a side note, something I’ve recently discovered from living in the us, if you innocently point out that there is no English word to describe someone specifically from the us, they get really indignant”.

    This is great point and something I’ve been thinking about lately. Whenever my wife (who is from Serbia) mentions something about “America” or “Americans”, I always point out that when you say America you are talking about two whole continents and not a specific country. I can tell her that to refer to country one can properly say “the U.S.” or “USA”, but I’m at a loss to tell her what single word is correct when referring to citizens or residents of the U.S.

    Sorry, a bit off topic but any ideas?

  28. Sorry, a bit off topic but any ideas?

    ‘Motherfuckers’ has a nice ring to it.

    This came up in another thread some months back. It’s verbal imperialism. Imagine if the Belgians just started calling themselves The Europeans. The French would laugh in their faces. Bad example, the French already laugh in the Belgians’ faces.

  29. Antinous – Nah, there are motherfuckers all over the world, some of them even not American. I think something like lazysheeplikeapathetcans is closer to the mark.

  30. I see the “We haven’t passed laws banning this torture” keep cropping up. It’s against the law to strike a non-resisting prisoner. When did that change?

    Also the “our law allows torture” guys are just adding noise to this signal: “We can kidnap and torture any one at any time”. That this signal is for non-USian consumption only is clear from the “Our domestic law trumps anything anyone else has to say” meme. From a non-USian standpoint that signal sounds like a terrorist threat.

    CIA? Department of War blogging psyops? See Cryptome’s publication of the Pentagons “guide for blogging”.

    Long live Liberty.
    May torturers rot in Hell.

  31. The “Americans” would do well to review the society from which Amerigo Vespucci sprang. Torture and cruelty were very common, although the images of such were much less common than they are today, and thus people were more prone to be genuinely horrified by this(and which may explain why a tyrant’s man-eating dogs’ names are remembered after 500 years). Americans now let horror run off their backs or treat it as entertainment.
    Do Americans torture foreigners because their media have conditioned them to accept/not question/shrug off torture?
    Are gangsters using all the means of Art and Artifice to control men’s minds and emotions?
    PS Americans would also do well to imitate Vespucci’s interests in things beyond his own borders.

  32. One final note: Perhaps USians should be called “Vespoochians”, to distiguish from the more general “Amerigos”, that is “Americans”.
    Now if we can get the currency renamed as “kwatloos” we could discuss the Vespoochians and their kwatloos.

  33. What’s wrong with using Americans to describe people from the US? There aren’t other countries with America in their name. Do any of the citizens of the other countries on North America or South America want to be called Americans? I know Canadians don’t want to.

  34. Actually, Ive heard America doesn’t come from Vespuchi, but rather some welsh fellow who sponsored Cabot’s journey. Very strange how shrouded the origin of the name most of the Western hemisphere takes is.

    simply, I don’t think there is a word in common usage. Some people have suggested Colombian, but that obviously doesn’t solve the confusion. Usians, is closer to other languages, like the French Etats Unisians. I suspect American will be used for some time to come.

  35. Hell, yeah. I’ve been on welfare and food stamps. Not since the 70s, but the way things are going…

  36. In a perfect world, I would be referred to as a Californian, not as an American. In my travels to foreign parts, most people seem to have viewed California as a separate country, anyway. If only that annoying federal government would recognize what the rest of the world intuits.

  37. Scottfree — “Colombia” is the South American country. “Columbia” is the nickname for the USA.

  38. Americans who support Freedom must continue to fight.
    The neoCONs started their rise to power in the mid 1960s.
    The wheels of change spin slowly, especially in government, but they do spin.
    If Americans who believe in Freedom and prosperity, justice and the rule of law keep fighting we will prevail.
    If you get frustrated take a short break.
    Never give up. All those who support Freedom are in the right.

  39. OK, it’s time to see if the Constitution is still alive. This is the point at which those checks and balances should kick in. Who has the authority / responsibility to act? Congress? The Justice Department? Ideally, it wouldn’t be necessary, but might it help if “We, The People” encourage them to act?

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