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2003 DOJ Memo Justifying Torture Released |
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The ACLU has forced the release of a 2003 DOJ memo which lays out “a ‘complete’ legal framework for detentions and interrogations, based on the Constitution, the UN Convention Against Torture (CAT), US war crimes statutes, and other laws…” The 81 page document is basically a complicated series of legal opinions justifying the use of torture. Balkinization calls it what it is,”the torture memo to top all torture memos.”
Senate Judiciary Chairman Patrick Leahy said the memo “reflects the expansive view of executive power that has been the hallmark of this administration” and called for it to be released four months ago.
An ACLU staff attorney, Amrit Singh, commented on the memo:
“Senior officials at the Justice Department gave the Pentagon the green light to torture prisoners. It is outrageous that none of these high-level officials have been brought to task yet for their role in authorizing prisoner abuse.”
I agree wholeheartedly.
You can view the entire memo here: Part 1 and Part 2 (both pdf). Here are some of the lowlights.
“…The Eighth Amendment… applies solely to those persons upon whom criminal sanctions have been imposed. As the Supreme Court has explained, the “‘Cruel and Unusual Punishment Clause’ was designed to protect those convicted of crimes… The Eight Amendment thus has no application to those individuals who have not been punished as part of a criminal proceeding, irrespective of the fact that they have been detained by the government… The Eighth Amendment therefore cannot extend to the detention of wartime detainees, who have been captured pursuant to the President’s power as Commander in Chief…”“The detention of enemy combatants can in no sense be deemed ‘punishment’ for purposes of the Eight Amendment… Indeed, it has long been established that captivity in wartime is neither a punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character…”
Translation: Anyone detained by the government who hasn’t been charged with a crime has no recourse against cruel and unusual punishment.
“The key statutory phrase in the defintion of torture [this is according to US code -- icm] is the statement that acts amount to torture if they cause ’severe mental pain or suffering.’ … The statute does not, however, define the term ’severe.’…to constitute torture, ’severe pain’ must rise to a a similarly high level — the level that would ordinarily ve associated with a physical condition or injury sufficiently serious that it would result in death, organ failure or serious impairment of bodily functions.”
Translation: An interrogation technique should only be considered torture if it hurts really really bad and you think you might die.
“Customary international law does not supply any additional standards.”
Translation: Up yours, Geneva Conventions.
“Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate these provisions, necessity or self-defense could provide justifications for any criminal liability.”
Translation: It doesn’t really matter what you do, we’ll back you up regardless.
The memo was written by then Deputy Assitant Attorney General and notorious warmonger John Yoo, who in 2005 said “It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than war disappearing from the world, the threat of war may well be increasing.” Glenn Greenwald serves up a damning indictment, calling Yoo “not only the most authoritarian but also the most partisan and intellectually dishonest lawyer in the country.”
Emptywheel has a fun game called Let’s Pretend we’re Lawyers, where you can mock Yoo’s scholarship.
On the bright side, Yoo gave us some advice in a 2004 LA Times op-ed:
If the American people disagree with that policy, they have options: Congress can change the law, or the electorate can change the administration.
Translation: So?
thanks for posting this–the fact that we have sought to justify torture is beyond appalling. it undermines basic norms of what it means to be civilized
This part is amazing:
“The statute does not, however, define the term ’severe.’%u2026to constitute torture, ’severe pain’ must rise to a a similarly high level %u2014 the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure or serious impairment of bodily functions.”
under this definition, it’s ok to burn someone with a lit cigarette. it’s also ok to dangle someone out of a window (as long as you don’t actually drop them). Mock execution seems like it would be ok, as would a threat to injure someone’s relative. none of these should be things anyone should think are ok and any definition of torture that excludes acts like these is a poor definition, to say the least
The fact that the government is now constitutionally justifying torture is simply terrifying.
Along these lines everyone should check out the Department of Defense Directive number 3000.05. This little prize states that it is DoD policy to be prepared to conduct stability operations that shall be given priority comparable to combat operations in order to establish or maintain order when civilians cannot do so. As well as allowing for our neighbors from the north to come down and help with these operations, and likewise we would do the same for them.
To me this shows that the government is preparing for any sort of uprising by the people, and with torture now justified I think that its time that the people step up and reclaim their democracy because I don’t know about the rest of you but I really don’t want to experiment with the definition of ’severe’ at all.