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Everything You Need To Know About The New Torture Memo

Everything You Need To Know About The New Torture Memo

The Story

Yesterday, the Justice Department released a de-classified version of a 2003 memo that gave the White House unlimited powers during wartime and provided legal cover for torture. [Reuters] [Time] [Washington Post] [NYT]

The memo was written by the number 2 guy at the Office of Legal Counsel, John Yoo. Before now, Yoo is perhaps best known as the guy who wrote the infamous “Bybee Memo” which said it’s only torture if the victim experiences death or organ failure.

This memo was dated March 14, 2003. It was overturned in December 2003, after a change in leadership at the Office of Special Counsel.

Damage Done: Those were a very important nine months, however. In April 2003, inspired by the Yoo memo, a small Pentagon “working group” endorsed “extremely aggressive” interrogation tactics.

Martin S. Lederman, a former lawyer at the Office of Special Counsel, also credits the Yoo memo with creating the environment that led to the atrocities at Abu Ghraib. Remember, the torture there took place between October and December 2003.

The “legal” arguments made in the Yoo memo:

Argument: President Bush doesn’t have to follow international laws banning torture.

Memo: “Our previous opinions make it clear that customary international law is not federal law and that the president is free to override it as his discretion.”

Argument: President Bush doesn’t have to follow the Constitution during a time of war.

Memo: “The Fifth Amendment due process clause does not apply to the president’s conduct of war… The detention of enemy combatants can in no sense be deemed ‘punishment’ for purposes of the Eighth Amendment.”

Argument: Interrogators are exempt from the law because they’re acting in self-defense.

Memo: “Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate these prohibitions, necessity or self-defense could provide justifications for any criminal liability.”

Argument: Interrogators can’t be held accountable to the law because the President has unlimited power to protect the country.

“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.”

Argument: The law doesn’t count if prisoners are held overseas.

Memo: “We concluded that different canons of construction indicate that generally applicable criminal laws do not apply to the military interrogation of alien unlawful combatants held abroad. Were it otherwise, the application of these statutes to the interrogation of enemy combatants undertaken by military personnel would conflict with the president’s commander-in-chief power.”

Argument: Torture isn’t torture unless you specifically meant it to be torture.

Memo: Torture “must ‘shock the conscience.’ Whether conduct is conscience-shocking turns in part on whether it is without any justification.” As the Washington Post explains, that means to be considered torture, conduct “would have to be inspired by malice or sadism before it could be prosecuted.”

This memo would have remained hidden if it weren’t for a freedom of information request filed by the ACLU.

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