http://www.nytimes.com/2008/04/03/washington/03intel.html
April 3, 2008
Memo Sheds New Light on Torture Issue
By DAVID JOHNSTON and SCOTT SHANE
WASHINGTON -- A newly disclosed Justice Department legal memorandum, written in March 2003 and authorizing the military's use of extremely harsh interrogation techniques, offers what could be a revealing clue in an unsolved mystery: What responsibility did top Pentagon and Bush administration officials have for abuses committed by American troops at the Abu Ghraib prison in Iraq and in Afghanistan; Guantánamo Bay, Cuba; and elsewhere?
Some legal experts and advocates said Wednesday that the document, written the month that the United States invaded Iraq, adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials and not just irresponsible actions by low-level personnel.
The opinion was written by John C. Yoo of the Office of Legal Counsel, the executive branch's highest authority on the interpretation of the law. It told the Pentagon's senior leadership that inflicting pain would not be considered torture unless it caused "death, organ failure or permanent damage," and it is the most fully developed legal justification that has yet come to light for inflicting physical and mental pressure on suspects.
While resembling an August 2002 memorandum drafted largely by Mr. Yoo, the March 2003 opinion went further, arguing more explicitly that the president's war powers could trump the law against torture, which it said could not constitutionally be enforced if it interfered with the commander in chief's orders.
Scott L. Silliman, head of the Center on Law, Ethics and National Security at Duke University and a former Air Force lawyer, said he did not believe that the 2003 memorandum directly caused mistreatment. But Mr. Silliman added, "The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere."
Because opinions issued by the Office of Legal Counsel are "binding on the Defense Department," Mr. Silliman said, Mr. Yoo's opinion effectively sidelined military lawyers who strongly opposed harsh interrogation methods.
In an e-mail message, Mr. Yoo, now a law professor at the University of California, Berkeley, rejected the idea that his memorandum helped create a culture for mistreatment.
"The 'culture of abuse' theory has no reliable evidence to support it," Mr. Yoo wrote. He noted that several military investigations had found that what he called "the appalling abuses" at Abu Ghraib were not authorized by any military policy.
"While each case of abuse is regrettable," Mr. Yoo wrote, "it is not possible for a large organization charged with protecting the national security, under extraordinary pressure, to perform its mission error-free."
Top Pentagon officials including Donald H. Rumsfeld, the former defense secretary, have said they never condoned mistreatment of prisoners. But the role played by senior military and civilian officials at the Pentagon has never been fully explained, and it is not clear how the legal memorandum, which was addressed to William Haynes, then the top Pentagon lawyer, influenced interrogations.
Several Democratic lawmakers asserted on Wednesday that the memorandum led directly to the abuses of detainees at Abu Ghraib, although the document specifies that it applies only to "unlawful combatants," a label that would not apply to the largely Iraqi population captured during the Iraq war.
The memorandum did apply to all unlawful combatants detained outside the United States, at a time when the Pentagon was struggling with the rules for interrogations of detainees at Guantánamo Bay and in other places, like Afghanistan.
William C. Banks, a specialist on national security law at Syracuse University, said that the memorandum shed critical light on the Bush administration but that it was "far fetched" to think it might be used to overturn convictions of soldiers for abuse at Abu Ghraib or elsewhere.
The document was made public on Tuesday after it was declassified in response to a request by the American Civil Liberties Union under the Freedom of Information Act.
Both the August 2002 and March 2003 memorandums were formally withdrawn by the Justice Department in 2004, after Mr. Yoo's successors at the Office of Legal Counsel concluded that they went too far.
Jonathan Hafetz, a lawyer representing Ali al-Marri, a Qatar citizen arrested in the United States after the Sept. 11 attacks, said he believed that the March 2003 opinion explained why his client was removed from the criminal justice system and placed in a military jail in Charleston, S.C., in June 2003.
"I think they moved him to the military system to be able to use the harsh techniques blessed in the Yoo memo," said Mr. Hafetz, of the Brennan Center for Justice.
Mr. Marri said he was subjected to cold, shackled in uncomfortable positions, deprived of sleep and otherwise mistreated.
Congressional Democrats used the 2003 memorandum on Wednesday to renew their criticism of the administration for policies that Senator Patrick J. Leahy of Vermont, chairman of the Judiciary Committee, said threatened "our country's status as a beacon of human rights."
Senator Edward M. Kennedy, Democrat of Massachusetts, said the memorandum showed that the administration "adopted arguments that could be used by other nations to try to justify the torture of American troops."
Both senators called for the release of other Justice Department opinions on interrogation. At least two major ones written in May 2005 by Steven G. Bradbury, the acting head of the Office of Legal Counsel, to justify harsh methods remain secret.
David B. Rivkin, a former White House and Justice Department lawyer in the Reagan and first Bush administrations, said that the wording of the 2003 opinion might be "overly broad," but that legal advisers like Mr. Yoo set out only what might be done legally, not what should be done.
"In a post-Sept. 11 environment, the lawyers tried to give decision makers broad legal flexibility," Mr. Rivkin said. "I don't want to substitute my judgment for John Yoo's as I sit in a comfortable office on a spring day in 2008."