In his interview, A.C. Thompson refers to three memos that helped -- and continue to help -- the administration legally justify its torture and rendition programs: Yoo, Gonzales and Bybee. Here is a basic overview of the three memos, based largely on a educational lesson plan from Teachable Moment.
THE YOO MEMO (Jan. 9, 2002)
A Justice Department memorandum stated: "Restricting the president's plenary power over military operations (including the treatment of prisoners)" would be "constitutionally dubious." This memo concluded that the Geneva Conventions did not cover non-state organizations like al-Qaeda or Afghanistan under the Taliban, since the latter was a "failed state" whose territory "had been largely overrun and held by violence by a militia or faction rather than a government."
The memo was written by Justice Department lawyers John Yoo and Robert Delahuntym, and was addressed to the Defense Department's general counsel, William Haynes II.
THE GONZALES MEMO (Jan. 25, 2002)
A memorandum from White House Counsel Alberto Gonzales to President Bush stated: "As you have said, the war against terrorism is a new kind of war. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians..." The new situation "renders obsolete Geneva's strict limitations on the questioning of enemy prisoners and renders quaint some of its provisions."
Gonzales said that a key advantage of declaring that Taliban and al-Qaeda fighters do not have Geneva protections is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act. It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [The War Crimes Act.]."
Gonzales was later appointed by President Bush and approved by the Senate to become U.S. Attorney General.
THE BYBEE MEMO (Aug. 1, 2002)
A memorandum from Assistant Attorney General Jay Bybee requested by White House Counsel Alberto Gonzales maintained that causing a person "mental pain" does not always constitute torture.
To be constituted as torture, Bybee wrote, mental pain must be caused by "threats of immediate death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture...physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death..." To be considered torture, the harm "must cause some lasting, though not necessarily permanent, damage....The development of a mental disorder such as post-traumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement."
The memo reported that at least seven acts have consistently been found to violate the federal torture Victims Protection Act: "1) Severe beatings using instruments such as iron bars, truncheons and clubs; 2) threats of imminent death, such as mock executions; 3) threats of removing extremities; 4) burning, especially burning with cigarettes; 5) electric shocks to genitalia or threats to do so; 6) rape or sexual assault, or injury to an individual's sexual organs, or threatening to do any of these sorts of acts; and 7) forcing the prisoner to watch the torture of others."
However, the memo also states that, "As Commander-in-Chief, the president has the constitutional authority to order interrogations of enemy combatants." Any measure that "interferes with the president's direction of such core war matters as the detention and interrogation of enemy combatants would thus be unconstitutional."
Bybee was subsequently appointed by President Bush to the U.S. Court of Appeals for the Ninth Circuit.
Comments