The Pentagon has released a now-defunct legal memo that approved the use of harsh interrogation techniques against terror suspects on grounds that US President George W. Bush’s authority during wartime trumps any international ban on torture.
The Justice Department memo, dated March 14, 2003, and released last Thursday, outlines legal justification for military interrogators to use harsh tactics against al-Qaeda and Taliban detainees overseas so long as they did not specifically intend to torture their captives.
Even so, the memo noted, the president’s wartime power as commander in chief would not be limited by the UN treaties against torture.
“Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion,” said the memo written by John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel.
The memo also offered a defense in case any interrogator was charged with violating US or international laws.
“Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability,” the memo concluded.
The memo was rescinded in December 2003, a mere nine months after Yoo sent it to the Pentagon’s top lawyer, William Haynes.
Although its existence has been known for years, its release on Tuesday marked the first time its contents in full have been made public.
Haynes, the Department of Defense’s longest-serving general counsel, resigned in late February to return to the private sector. He has been hotly criticized for his role in crafting Bush administration policies for detaining and trying suspected terrorists that some argue led to prisoner abuses at the Guantanamo Bay detention center.
Yoo’s memo became part of a debate among the Pentagon’s civilian and military leaders about what interrogation tactics to allow at overseas facilities and whether US troops might face legal problems domestically or in international courts.
Also of concern was whether techniques used by US interrogators might someday be used as justification for harsh treatment of Americans captured by opposing forces.
The Department of Justice has opened an internal investigation into whether its top officials improperly authorized or reviewed the CIA’s use of waterboarding, which simulates drowning, when interrogating terror suspects. It was unclear whether the Yoo memo, which focuses only on military interrogators, will be part of that inquiry.
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