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Justice Torture Memo: Constitution Does Not Apply
by James Oliphant, Tribune
The Justice Department late Tuesday released a declassified 2003 memorandum long sought by congressional Democrats and other administration critics that outlines the government's legal justification for harsh interrogation techniques used by the military against captured enemy combatants outside the United States.
The memo, written by John Yoo, then a key architect of legal policy in the wake of 9/11, dismisses several legal impediments to the use of extreme techniques.
Yoo was long a proponent of an aggressive approach in the war against terrorism and a believer in executive branch authority. But the memo was withdrawn as formal government policy less than a year after it was written.
In the March 14, 2003 memo, Yoo says the Constitution was not in play with regard to the interrogations because the Fifth Amendment (which provides for due process of law) and the Eighth Amendment (which prevents the government from employing cruel and usual punishment) does "not extend to alien enemy combatants held abroad.":
The memo goes on to explain that federal criminal statutes regarding assault and other crimes against the body don't apply to authorized military interrogations overseas and that statutes that do apply to the conduct of U.S. officials abroad pertaining to war crimes and torture establish a limited obligation on the part of interrogators to refrain from bodily harm.
It also defines the United States' obligations under the United Nations Convention Against Torture and other international treaties prohibiting torture to be confined to ensuring that interrogators do not apply "cruel and unusual punishment" as defined by American constitutional law, regardless of differing international standards.
And it restates the oft-repeated view held by administration officals that the Geneva Conventions, which governs the treatment of prisoners of war, does not apply to members of al Qaeda and the Taliban.
The memo also reflected Yoo's belief in that the executive branch had the inherent authority during wartime to obtain information by necessarily hazardous means:
"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."
It was during 2003, while the memo was operative, that guards and other military personnel committed the abuses of prisoners at Abu Ghraib in Baghdad, Iraq. The memo was withdrawn shortly thereafter, but before those abuses came to light.
The memo was prepared by Yoo for William Haynes, then the Pentagon's general counsel and another key player in the administration's legal strategy. It was declassified Monday by Haynes' acting successor, Daniel Dell' Orto. Yoo is now a law professor at the University of California at Berkeley.
Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, which has repeatedly asked the Justice Department to release the memo and others like it, had this to say Tuesday evening:
It has been more than four months since I asked the White House – again – to declassify the secret Justice Department opinions on interrogation practices. Today’s declassification of one such memo is a small step forward, but in no way fulfills those requests. The administration continues to shield several memos even from members of Congress.
The memo they have declassified today reflects the expansive view of executive power that has been the hallmark of this administration. It is no wonder that this memo, like the now-infamous “Bybee memo”, could not withstand scrutiny and had to be withdrawn. Like the “Bybee memo”, this memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country’s status as a beacon of human rights around the world.