[Infowarrior] - Interrogators Immune From Prosecution, '03 Memo Says

[Richard Forno]

Terrorism Interrogators Immune From Prosecution, '03 Memo Says
Since Rescinded, the Document Granted Nearly Unfettered Presidential Power

By Dan Eggen and Josh White
Washington Post Staff Writers
Tuesday, April 1, 2008; 6:32 PM

http://www.washingtonpost.com/wp-dyn/content/article/2008/04/01/AR2008040102
213_pf.html

Federal laws prohibiting assault and other crimes did not apply to military
interrogators who questioned al-Qaeda captives because the president's
ultimate authority as commander-in-chief overrode such statutes, according
to a newly declassified 2003 Justice Department memo released today.

The memo--which was rescinded just nine months after it was issued--provides
an expansive argument for nearly unfettered presidential power in a time of
war, contending that numerous laws and treaties that forbid torture or cruel
treatment should not apply to the interrogations of enemy combatants
overseas.

The 81-page document was 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, and became the legal foundation for the Defense Department's
use of aggressive interrogation practices.

The memo asserts that domestic and international laws and treaties, as well
as the U.S. Constitution, would 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 the memo. "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."

Interrogators who harmed a prisoner also would be protected by a "national
and international version of the right to self-defense," Yoo wrote.

Congress passed the Detainee Treatment Act of 2005, which required the
Defense Department to limit interrogation technique to those described in
the Army Field Manual. In 2006, the Army rewrote the manual, which now
specifically prohibits many of the tactics the administration sought to use.

Although the existence of the March 14, 2003 memo has long been known, its
contents previously have never been disclosed. The memo was rescinded along
with another from August 2002 that narrowly defined the bounds of torture,
which also was written by Yoo but signed by another Justice Department
official who is now a federal judge.

The documents are part of a growing collection of disputed or controversial
legal memoranda and internal reports that undergirded a series of coercive
interrogation techniques employed by the Bush administration in the years
after the Sept. 11, 2001 terrorist attacks. The newly released memo was sent
by the Justice Department late today to lawmakers on Capitol Hill, who have
long pushed for its declassification.

The working group report, along with the memos from Yoo and others, were
withdrawn after a group of dissident lawyers at the Justice Department later
concluded that the legal reasoning behind the documents was deeply flawed.

In his 2007 book, "The Terror Presidency," Jack Goldsmith, who was head of
the Office of Legal Counsel from 2003 to 2004, writes that the Yoo
memorandum was one of two internal Justice Department opinions that "stood
out" for "the unusual lack of care and sobriety in their legal analysis."

Among many other problems, Goldsmith wrote, both memos "were wildly broader
than was necessary to support what was actually being done."

Yoo's memo in March 2003 came amid contentious debate inside the Pentagon
about which interrogation techniques should be allowed at Defense Department
facilities and which could open U.S. service members to potential legal
troubles, both in domestic and international courts.

A Pentagon working group began meeting in January 2003 after then-Defense
Secretary Donald H. Rumsfeld suspended a list of aggressive techniques he
had allowed for a single detainee at Guantanamo Bay, Cuba. The prisoner,
military investigators later would determine, faced an interrogation regime
that included stress positions, nudity, hooding, exposure to dogs and other
aggressive techniques.

The working group's 2003 report, prepared under the supervision of
then-general counsel William J. Haynes II, said that "in order to respect
the President's inherent constitutional authority to manage a military
campaign . . . [the prohibition against torture] must be construed as
inapplicable to interrogations undertaken pursuant to his Commander-in-Chief
authority."

In the days before Yoo sent his memo to Haynes, the top lawyers for each
service wrote strenuous objections to the use of Justice Department
arguments on the matter, arguing that the use of such extreme techniques
could send a dangerous message to other nations about what the United States
considers acceptable, and that using such techniques could amount to
"unlawful" conduct by U.S. troops.

"Implementation of questionable techniques will very likely establish a new
baseline for acceptable practice in this area, putting our service personnel
at far greater risk and vitiating many of the POW/detainee safeguards the
U.S. has worked hard to establish over the past five decades," wrote Maj.
Gen. Thomas J. Romig, then the Army's Judge Advocate General, on March 3,
2003.

Rear Adm. Michael F. Lohr, the Navy's top lawyer, asked in a memo at the
time whether the American people would find "we have missed the forest for
the trees by condoning practices that, while technically legal, are
inconsistent with our most fundamental values?"

A draft memo from the working group on March 6, 2003 dismissed most of the
service lawyers' recommendations and relied heavily on the Justice
Department's reasoning. Air Force General Counsel Mary Walker, who wrote the
memo, used the administration's position on denying detainees Geneva
Convention rights and on the definition of torture to justify the use of
aggressive tactics.

Walker's group issued a final report on April 4, 2003, that defends the use
of extremely aggressive tactics. In part of its discussion about techniques
such as using dogs, removal of clothing, slaps, sleep deprivation and other
techniques, the report said: "Generally, the legal analysis that was applied
is that understood to comport with the views of the Department of Justice."

The service JAGs did not receive a copy of Yoo's March memo and did not know
about the final working group report for more than a year.

"There was no consensus on the working group, and the report that Mary
Walker put together was done with very little of our input, or she just
didn't listen to the input from the group," Romig, now dean of the Washburn
University School of Law in Kansas, said yesterday. "When this all came out,
I think it just caused a level of confusion, where people were trying to
push the envelope. It gave more credence to the argument that this was all a
new model, a new dynamic we were in, and therefore the old rules didn't
apply."

Romig said top civilians in the Pentagon and within the Bush administration
consistently refused to listen to lawyers in uniform, despite their dire
predictions that deviating from time-tested interrogation norms could result
in disaster.

"It taints the military in a way that it doesn't by and large deserve,"
Romig said. "Nevertheless, these things have occurred. It's terribly
damaging to the armed forces and to our country to have had this happen in
the way that it's happened."

Staff researcher Julie Tate contributed to this report.