Memo Contends That President Can Authorize Torture

FOR IMMEDIATE RELEASE

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NEW YORK — A secret memo authored by the Department of Justice (DOJ) asserting that President Bush has unlimited power to order brutal interrogations to extract information from detainees was declassified today as a result of an American Civil Liberties Union Freedom of Information Act lawsuit. The memo, written by John Yoo, then a deputy at the DOJ's Office of Legal Counsel (OLC), was sent to the Defense Department in March 2003.

"Senior officials at the Justice Department gave the Pentagon the green light to torture prisoners," said Amrit Singh, an ACLU staff attorney. "It is outrageous that none of these high-level officials have been brought to task yet for their role in authorizing prisoner abuse."

A similar OLC memo asserting the same kind of unchecked executive authority was sent to the CIA in August 2002. In that now-notorious document, torture was defined so narrowly that it encompassed only those methods that result in pain akin to that associated with "death, organ failure or the permanent impairment of a significant body function."

In many respects, the March 2003 memo released today parrots the advice previously given to the CIA. In other ways, however, the 2003 memo goes even further. For example, it argues — without any qualification — that, during wartime, the president's Commander-in-Chief power overrides the due process guarantee of the Fifth Amendment.

"The memo shows that the same disgraceful legal analysis that was at the root of the CIA's illegal interrogation program was also at the root of the Defense Department's program," said Jameel Jaffer, Director of the ACLU National Security Project. "The memo takes an extremely broad view of the president's power as Commander-in-Chief. If you believe this memo, there is no limit at all to the kinds of interrogation methods the President can authorize."

In the memo released today, Yoo writes: "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." The memo goes on to say, "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 was declassified in response to a lawsuit filed by the ACLU, the New York Civil Liberties Union, and other organizations in June 2004 to enforce Freedom of Information Act (FOIA) requests for records concerning the treatment of prisoners in U.S. custody abroad. The ACLU has been fighting for the release of the March 2003 Yoo memo since filing the lawsuit. A few weeks ago, after the court ordered additional briefing on whether the Defense Department could continue to withhold the memo, the government reluctantly agreed to conduct a declassification review by March 31. The Defense Department released this memo after conducting the review.

The March 2003 Yoo memo also sheds considerable light on the development of interrogation methods for use at Guantánamo Bay and elsewhere. In a recently published book, Administration of Torture, ACLU attorneys Jaffer and Singh explain that, in early 2003, a Defense Department working group convened by then-Secretary of Defense Donald Rumsfeld was supplied with the March 2003 Yoo memo and told that it should regard the memo as "definitive guidance." Relying on the Yoo memo, the working group ultimately endorsed a slew of harsh interrogation methods, some of which violated U.S. and international law. Secretary Rumsfeld relied on the working group memo to authorize a new interrogation directive for use at Guantánamo Bay. General Geoffrey Miller, who was in charge of Guantánamo, was later sent to Iraq to encourage the adoption of abusive methods there.

The Yoo memo can be found online at:

www.aclu.org/safefree/torture/34745res20030314.html

In Administration of Torture, Jaffer and Singh write that interrogation practices sanctioned at the highest levels of the Bush administration led to the system abuse and torture of prisoners in U.S. custody. More information about the book is available online at:

www.aclu.org/administrationoftorture

To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA lawsuit. The ACLU has been posting these documents online at:

www.aclu.org/torturefoia

Attorneys in the FOIA case are Lawrence S. Lustberg and Melanca D. Clark of the New Jersey-based law firm Gibbons, P.C.; Jaffer, Singh and Judy Rabinovitz of the ACLU; Arthur Eisenberg and Beth Haroules of the New York Civil Liberties Union; and Shayana Kadidal and Michael Ratner of the Center for Constitutional Rights.