Memo's chilly calculus on prisoner treatment
An attorney's 2003 analysis of what violence could be legally done to military prisoners during questioning explores some unsavory tactics.
The Washington Post
WASHINGTON — Thirty pages into a memorandum discussing the legal boundaries of military interrogations in 2003, senior Justice Department lawyer John Yoo tackled a question not often asked by U.S. policymakers: Could the president, if he desired, have a prisoner's eyes poked out?
Or, could he have "scalding water, corrosive acid or caustic substance" thrown on a prisoner? How about slitting an ear, nose or lip, or disabling a tongue or limb?
These assaults are mentioned in a U.S. law prohibiting maiming, which Yoo examined as he clarified the outer limits of what could legally be done to terrorism suspects detained by U.S. authorities. The specific prohibitions, he said, depended on the circumstances or which "body part the statute specifies."
But none of that matters in a time of war, Yoo also said, because federal laws prohibiting assault, maiming and other crimes by military interrogators are trumped by the president's authority as commander in chief.
The dry discussion of U.S. maiming statutes is one in a series of graphic passages in Yoo's 81-page memo, which was declassified last week. No maiming is known to have occurred in U.S. interrogations, and the Justice Department disavowed the document nine months after it was written.
The memo explores a wide range of topics, from the use of mind-altering drugs on captives to the legality of forcing prisoners to squat on their toes in a "frog crouch." It repeats an assertion in another Yoo memo that an interrogation tactic cannot be considered torture unless it would result in "death, organ failure or serious impairment of bodily functions."
Yoo, now a law professor at the University of California, Berkeley, also used footnotes to dismiss the Fourth and Fifth amendments to the Constitution, arguing that protections against unreasonable search and seizure and guarantees of due process either do not apply or are irrelevant in a time of war. He frequently cites his previous legal opinions to bolster his case.
Written opinions by the Office of Legal Counsel (OLC) have the force of law within the government because its staff is assigned to interpret the meaning of statutory or constitutional language.
Yoo's 2003 memo has provoked strong criticism from legal academics, human-rights advocates and military-law experts, who said he was wrong on basic matters of constitutional law and went too far in authorizing harsh and coercive interrogation tactics by the Defense Department.
"Having 81 pages of legal analysis with its footnotes and respectable-sounding language makes the reader lose sight of what this is all about," said Dawn Johnsen, an OLC chief during the Clinton administration who is now a law professor at Indiana University. "He is saying that poking people's eyes out and pouring acid on them is beyond Congress's ability to limit ... It is an unconscionable document."
Yoo defends the memo as a "near-boilerplate" argument in favor of presidential prerogatives and says its fundamental assertions differ little from those made by previous presidents of both parties. He has criticized the Justice Department for issuing new legal opinions that do not include detailed discussions of specific interrogation tactics. "You have to draw the line," he said in an Esquire magazine interview posted online last week. "What the government is doing is unpleasant. ... But I also think part of the job unfortunately of being a lawyer sometimes is you have to draw those lines."
The 2003 memo included long discussions of the relative illegality of a variety of interrogation tactics, including a British technique in which prisoners are forced to stand in a spread-eagle position against a wall, and an Israeli technique in which a suspect is hooded, strapped to a chair and subjected to powerfully loud music.
Various courts had declared both tactics inhumane, but not torture, Yoo noted. This meant they were illegal under a provision of the Geneva Conventions that the administration said had no relevance to unlawful combatants in its custody.
In another passage, discussing the bounds of Eighth Amendment protections involving confinement conditions, Yoo concluded that "the clothing of a detainee could also be taken away for a period of time without necessarily depriving him of a basic human need."
The interrogation memo was considered a binding opinion for nine months until December 2003, when Jack Goldsmith, the new chief of the Office of Legal Counsel, told the Defense Department to ignore the analysis.
In his book "The Terror Presidency," Goldsmith, who now teaches law at Harvard, said some of the memos written by Yoo and colleagues from 2001-'03 were "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."
Copyright © 2008 The Seattle Times Company
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