Legal News

Administration Declassifies 2003 Torture Memo

By Dan Slater

The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result. — Definition of torture in newly-released legal memo written by John Yoo in 2003

Three months ago, lawyers for Jose Padilla — the so-called dirty bomber who was found guilty on terrorism conspiracy charges — kicked up quite a fuss when they filed suit against John Yoo, an architect of the Bush administration’s terrorism policies. The suit seeks $1 in damages and a judgment declaring that the government’s treatment of Padilla violated the Constitution.

It might not matter much for the merits of Padilla’s suit, but a new piece of evidence emerged yesterday when the Bush administration declassified an 81-page memo from 2003, in which Yoo, then the deputy assistant AG in Justice’s Office of the Legal Counsel, concludes that even if techniques are found to be in violation of U.S. and international laws against torture, “necessity or self-defense could provide justifications for any criminal liability.” (Here are reports from the NYT, the WSJ and the WaPo, where you can click through to the text of the memo.)

According to the reports, the memo was issued to guide the Pentagon on treatment of terror suspects detained overseas. Like an earlier memo issued by John Bybee, the head of OLC, it sanctioned certain techniques that inflict “cruel, inhuman or degrading treatment” on detainees. The newly declassified Yoo memo states: “In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy.”

The DOJ has since withdrawn both the Yoo and Bybee memos, issuing a 2004 legal opinion that declared “torture is abhorrent both to American law and values and to international norms.” The memos, however, demonstrate how sweeping the Justice Department viewed presidential power in the post 9/11 world.

Peter Carr, a DOJ spokesman, said the department’s current legal view “does not conclude that the President can supersede statutes regulating detainee treatment.”

Full post as published by Law Blog - WSJ.com on December 31, 1969 (boomark / email).