Constitutional Law

Full Text of Pengaton "Torture" Memo Released

The Washington Post reported this evening on the declassification and release of an 81-page memorandum written by former Deputy Assistant Attorney General John Yoo and issued on March 14, 2003 on "the Military Interrogation of Alien Unlawful Combatants Held Outside the United States." This memo is different from the already publicly available "torture memo," written in 2002, in that the 2003 memo focused on interrogation techniques to be used by the Department of Defense, whereas the 2002 memo focused on techniques to be used by the CIA . The Pentagon interrogation memo argues that "numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers."

The memo is available from the Post in two parts: here and here. Its contents are described as "asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes." The memo "argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce 'an extreme effect' calculated to 'cause a profound disruption of the senses or personality.'"

Professor Marty Lederman has a first reaction to seeing the full text of the memo.

Louis Fisher examined arguments public advanced by Professor Yoo in this 2006 article entitled  "Lost Constitutional Moorings: Recovering the War Power." ACS has more resources on the proper role of the Department of Justice for whom Professor Yoo worked, including an issue brief on how to avoid another "torture opinion", and a white paper on principles to guide the Department of Justice.

Full post as published by ACS Blog on December 31, 1969 (boomark / email).