Attorney General

Declassified DOJ Memo Said President Could Override Torture Ban

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Updated: A newly declassified 2003 Justice Department memorandum maintains that treaties and criminal statutes against torture and assault don’t apply to military interrogators questioning al-Qaida suspects overseas because the president has authority as commander-in-chief to override them.

Interrogators who harm an al-Qaida prisoner would be protected by a “national and international version of the right to self-defense” of the United States, the memo argues, according to a report in the Washington Post (reg. req.).

“In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy,” the memo says, according to an account in the Wall Street Journal (sub. req.).

The 2003 memo gave the Pentagon much of the same authority the Justice Department had already given to the CIA in a 2002 memo, the New York Times reports.

The 2003 document was written by John Yoo, then-deputy assistant attorney general in the Justice Department’s Office of Legal Counsel. Yoo was also primary author of a previously disclosed 2002 memo that had been signed by then-Assistant Attorney General Jay Bybee. Both memos were later withdrawn.

The 2003 memo says interrogators should not be criminally liable for poking, shoving or slapping detainees and appears to defend the use of mind-altering drugs that do not “cause a profound disruption of the senses or personality,” the Post story says

“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-Qaida 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.”

The memo argues that conduct would not be illegal unless it shocked the conscience, and conduct that is justified would not shock the conscience.

Yoo, who is a law professor at the University of California at Berkeley, defended the memo in an e-mail to the Washington Post. “Far from inventing some novel interpretation of the Constitution,” Yoo said, “our legal advice to the president, in fact, was near boilerplate.”

The Post has posted the 81-page memo in a first and second part (both are PDFs).

Updated at 9:33 a.m. to include information from the New York Times story.

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