Post-9/11 Memo Indicates View Around Constitution
Thursday, April 3, 2008
For at least 16 months after the Sept. 11, 2001, attacks, the Bush administration
argued that the Constitution’s protection against unreasonable searches and
seizures on U.S. soil did not apply to its efforts to protect against terrorism.
That view was expressed in a secret Justice Department legal memo dated Oct.
23, 2001. The administration stressed yesterday that it now disavows that view.
The October 2001 memo was written at the White House’s request by John Yoo,
then the deputy assistant attorney general, and addressed to Alberto R. Gonzales,
then the White House counsel. The37-page memo has not been released.
Its existence was disclosed Tuesday in a footnote of a separate secret Justice
Department memo, dated March 14, 2003, that discussed the legality of various
interrogation techniques. It was released by the Pentagon in response to an
ACLU Freedom of Information Act lawsuit.
“Our office recently concluded that the Fourth Amendment had no application
to domestic military operations,” the footnote in that memo states, referring
to a document titled “Authority for Use of Military Force to Combat Terrorist
Activities Within the United States.”
Exactly what domestic military action was covered by the October memo is unclear.
Source URL: http://www.washingtonpost.com/wp-dyn/content/article/2008/04/03/AR2008040300067.html
2003 Justice Department memo justifies torture, presidential dictatorship
By Joe Kay
4 April 2008
On Tuesday, the Defense Department released a 2003 memo asserting the right
of the US president to order the military to torture prisoners.
The memo is signed by then-Deputy Assistant Attorney General John Yoo and is
dated March 14, 2003, one week before the launch of the Iraq war. It is the
latest memo to be released that argues for virtually unrestrained executive
powers as part of the president’s “Commander-in-Chief” authority.
The memo should serve as a sharp warning about the type of barbaric methods the US government is employing and will continue to employ to suppress all international and domestic opposition.
The timing of the memo indicates that it was intended at least in part to provide a justification for the future torture of prisoners captured during the Iraq war. It includes many of the arguments contained in an August 1, 2002, memo (signed by Assistant Attorney General Jay Bybee, but drafted by Yoo), but the later document is more expansive and directed explicitly at prisoners held by the military.
The memo was kept secret for five years and was only released pursuant to a Freedom of Information Act request by the American Civil Liberties Union.
The specific purpose of the Yoo memo was to outline the position of the Office of Legal Counsel (OLC)–the body that speaks for the Justice Department on legal matters–on interrogations of “alien unlawful combatants held outside the United States.” However, most of the arguments are structured to apply to anyone, including American citizens held in the US.
One of the most significant assertions is that the president has the authority to override US and international law as part of the “war on terror.” Yoo writes, “Any construction of criminal laws that regulated the President’s authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President’s constitutional authority.”
The Washington Post noted April 2 that the memo was released in the midst of an intense controversy within the military over interrogation policy. After a rebellion by military lawyers protesting some of the more extreme interrogation methods, “then-Defense Secretary Donald H. Rumsfeld in December 2002 suspended a list of aggressive techniques he had approved, the most extreme of which were used on a single detainee at the military prison at Guantánamo Bay, Cuba,” the newspaper reported. “Largely because of Yoo’s memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics.”
A few months later, in the fall of 2003, Rumsfeld sent General Geoffrey Miller, then in charge of interrogations at Guantánamo Bay, to Iraq where he advised military officials at the Abu Ghraib prison. The photographs and videos of the horrible abuse of Iraqi prisoners at Abu Ghraib were taken shortly thereafter.
Yoo belonged to a group of lawyers in the Bush administration that drafted legal memoranda following the attacks of September 11, 2001. The group included David Addington, then-legal counsel and later chief of staff for Vice President Dick Cheney; Alberto Gonzales, then-White House counsel and later attorney general; and William Haynes, the general counsel for the Pentagon.
The group operated under the direction of Cheney and George W. Bush, and therefore the Yoo memo is an expression of administration policy. Memos drafted by the group justified preemptive war, the violation of the Geneva Conventions, domestic spying, military commissions and torture, among other crimes. Each document included prominently an argument for the unfettered power of the president as Commander-in-Chief and constituted together the basic outline of a presidential-military dictatorship.
A justification for torture
The 81-page memo released Tuesday is filled with pseudo-legal reasoning advanced to justify torture. First, Yoo argues that the Constitution, including the prohibition on “cruel and unusual punishment” does not apply to “alien enemy combatants held abroad.” Second, he argues that US law cannot restrict the interrogation of any “enemy combatant” held by the military, since interrogation is part of the president’s Commander-in-Chief powers.
Third, Yoo argues that international treaties, and in particular the Convention Against Torture (CAT), are essentially meaningless. In the process, he argues that applicable American domestic law and Constitutional rights cannot prevent torture against anyone held by the US military.
According to Yoo, the definition of torture under CAT is limited to the definition contained in the War Crimes Act. Yoo repeats a linguistic analysis he included in the earlier torture memo, which defined torture under the War Crimes Act so narrowly as to allow for almost anything.
For example, to constitute torture, “severe pain,” under the War Crimes Act, “must rise to a … 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.” A series of other rationalizations are included to justify even worse physical and psychological treatment. (See: “Washington Post publishes memo implicating White House in torture of prisoners”)
Even torture as it is narrowly defined in the memo could be used, according to Yoo, on the grounds of self-defense. “If interrogation methods were inconsistent with the United States’ obligations under CAT, but were justified by necessity or self-defense, we would view these actions still as consistent ultimately with international law … Further, if the President ordered that conduct [torture], such an order would amount to a suspension or termination of the Convention. In so doing, the President’s order and the resulting conduct would not be a violation of international law because the Untied States would no longer be bound by the treaty.”
If the US president orders torture then that suspends or terminates the Convention Against Torture and therefore, since the Convention is now suspended or terminated … the conduct cannot be considered illegal! This is the logic of a thug.
Furthermore, according to Yoo, “cruel, inhuman, and degrading treatment” prohibited under CAT is defined by those actions prohibited by the US Constitution, but this is no help to someone imprisoned by the military. The Eighth Amendment prohibition against “cruel and degrading treatment,” for example, only applies to treatment that is not carried out in “good faith.”
“For good faith to be found, the use of force should, among other things, be necessary” in ensuring “the government’s interest,” Yoo writes. “Just as prison officials are given deference in their response to rioting inmates or prison discipline, so too must the Executive be given discretion in its decision to respond to the grave threat to national security posed by the current conflict.”
In other words, if the torture is carried out on the pretext of “national security” or the war on terror, it is in “good faith,” and therefore not “cruel and unusual.” In similar fashion, Yoo dismisses the Fifth and Fifteenth Amendment due process guarantees.
Yoo concludes by arguing that if a government official was after all this charged with torture, he would have several possible defenses, including necessity and self-defense. “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
A blueprint for dictatorship and domestic repression
Aside from the first argument that the US Constitution does not apply to non-citizens held abroad, the rest of the memo is structured to apply to anyone captured by the American military in the “war on terror.” The memo refers throughout to “enemy combatants,” which the Bush administration has applied to American citizens held in the US, including Jose Padilla. The US Supreme Court has upheld the ability of the executive to designate Padilla an enemy combatant.
The section defining the Eighth Amendment as allowing methods employed in “good faith” is especially significant, since it essentially guts the main protection that US citizens have against torture at the hands of the government. According to this rationale, therefore, an American citizen, captured on the pretext of “terrorism,” can be tortured.
Underscoring the broad intent of the memo, a footnote refers to a previous document that has never been released, entitled Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States. The memo was also written by Yoo, along with Special Counsel for the OLC, Robert Delahunty; it is dated October 23, 2001.
The footnote states that in that memo, the OLC “concluded that the Fourth Amendment has no application to domestic military operations.” The Fourth Amendment prohibits “unreasonable searches and seizures.” The memo was one of several intended in part to justify the National Security Agency’s illegal domestic wiretapping program, which began officially in October 2001.
However, the earlier Yoo memo had a much broader purpose than simply justifying domestic spying. The only other declassified reference to this memo came in a February 26, 2002 document on the interrogation of prisoners in Afghanistan. Signed by Bybee, the memo states in a footnote that in the same October 23 memo, the OLC “opined that the Posse Comitatus Act … which generally prohibits the domestic use of the Armed Forces for law enforcement purposes absent constitutional or statutory authority to do so, does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States.”
These memoranda were drawn up for one essential purpose: to provide a rationale for overturning all legal and Constitutional restrictions on presidential and military power. While some of the early memos, including the one released this week, were later officially withdrawn by the OLC, the arguments contained in them have never been repudiated. Yoo, now a law professor at the University of California at Berkeley, said in an email to the Washington Post that his memos were recalled only “for appearances’ sake.”
While their defenders claim that all of these memos are instruments in the fight against terrorists, this has nothing to do with their real aim. Under conditions of growing inequality, economic crisis and militarism, the American ruling class is laying the foundations for mass repression.
The release of the recent memo has provoked little reaction from the Democrats, who endorse the so-called “war on terror” and have been complicit in all the criminal actions of the Bush administration. Neither of the remaining Democratic Party presidential hopefuls, Senators Hillary Clinton and Barack Obama, has condemned or commented on the Yoo torture memo.
Bush defends torture [16 February 2008]
US attorney general rejects investigation into use of waterboarding [9 February 2008]
Bush administration acknowledges and defends use of torture technique [7 February 2008]
Washington Post publishes memo implicating White House in torture of prisoners [17 June 2004]
Source URL: http://www.wsws.org/articles/2008/apr2008/memo-a04.shtml
AFTER 9/11, A SECRET MEMO
Administration Asserted a Terror Exception on Search and Seizure
By Dan Eggen and Josh White
Friday, April 4, 2008
The Justice Department concluded in October 2001 that military operations combating terrorism inside the United States are not limited by Fourth Amendment protections against unreasonable searches and seizures, in one of several secret memos containing new and controversial assertions of presidential power.
The memo, sent on Oct. 23, 2001, to the Defense Department and the White House by the Office of Legal Counsel, focused on the rules governing any deployment of U.S. forces inside the country “in the event of further large-scale terrorist activities” by al-Qaeda, a Justice Department official said yesterday.
Administration officials declined to detail what domestic military operations were being contemplated at the time, and the legal status of the secret memo is now unclear. Although the memo has not been formally withdrawn, the Justice Department yesterday repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on “the particular context and circumstances of the search,” according to a statement.
The Fourth Amendment assertion is one of several far-reaching legal arguments revealed by the disclosure Tuesday of a 2003 Justice Department memo that authorized harsh military interrogations. In its footnotes, asides and central text, that 81-page memo asserted nearly unlimited presidential powers during a time of war, although the Justice Department later said the military should not rely on its reasoning.
The document disclosed, for example, that the administration’s top lawyers had declared that the president has unfettered power to seize oceangoing ships as commander in chief; that Congress has no ability to pass legislation governing the interrogations of enemy combatants; and that federal laws prohibiting assault and other crimes did not apply to military interrogators who questioned al-Qaeda captives.
One section discussed to what extent the president might be allowed to legally maim a prisoner, such as through the use of a “scalding, corrosive, or caustic substance.” A footnote argued that Fifth Amendment guarantees of due-process rights “do not address actions the Executive takes in conducting a military campaign against the Nation’s enemies.”
These bold assertions surprised many experts, including career officials and Bush appointees at the Justice and Defense departments, who said the previously secret opinions are overly broad and improperly granted vast powers to the president without adequate internal debate or judicial oversight.
No court has ever ruled that the Fourth Amendment does not apply to the military, said Jameel Jaffer, national security director at the American Civil Liberties Union. “In general, the government can’t send an FBI agent to search your home or listen to your phone calls without a warrant, and it can’t send a soldier to do it, either,” Jaffer said. “The applicability of the Fourth Amendment doesn’t turn on what kind of uniform the government agent is wearing.”
The memo was made public Tuesday in response to an ACLU lawsuit and requests from Congress; the Fourth Amendment issue was first noted by the Associated Press.
Attorneys for soldiers charged with abuse at Iraq’s Abu Ghraib prison said they should have received copies of the memo as part of the legal-discovery process, and argued that it shows that the highest levels of government condoned activities that were later practiced in U.S. detention facilities abroad.
Retired Air Force Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff when the memo was written, said that he never saw the document authorizing harsh military interrogations and that its narrow definition of torture is “absolutely ludicrous.”
“I frankly don’t know anyone in the military who bought into that as a good definition of when you cross the line,” Myers said this week. “In the end, you want to do the right thing. I worry most about reciprocity, how other countries will treat us.”
Neither the attorney general at the time, John D. Ashcroft, nor his deputy, Larry D. Thompson, were aware of the 81-page memo when it was written and sent to the Pentagon in March 2003, according to several former senior department officials. The Pentagon was told in December 2003 to disregard the legal advice in the memo after Justice Department lawyers raised objections.
The memo was written by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, who also wrote or co-wrote many of the key legal opinions that asserted an expansive view of presidential power in the Bush administration’s early years. Now a California law professor, Yoo has defended his work as a “near boilerplate” defense of presidential prerogatives and said subsequent criticism has been motivated by politics.
Two memos written or drafted by Yoo, including the 2003 memo released this week, have been formally withdrawn by the Justice Department. However, the October 2001 memo arguing for unregulated military searches on U.S. soil has not been formally withdrawn and remains a secret but unclassified document, according to Justice Department spokesman Brian Roehrkasse.
Roehrkasse declined to say whether the document has been formally modified in any way, and refused to comment further because the memo is the subject of ongoing litigation seeking its public release.
Roehrkasse and other officials said the 2001 memo is not related to the administration’s controversial warrantless surveillance program, which allowed a military organization — the National Security Agency — to monitor communications between the United States and overseas without warrants.
Justice Department officials also declined to explain a reference in Yoo’s 2003 memo that said the Criminal Division “concurs in our conclusion” that federal criminal laws do not apply to the military during wartime. The division was led at the time by Michael Chertoff, now head of the Department of Homeland Security.
The Justice Department has dropped 22 out of 24 cases of alleged detainee abuse by civilian employees and contractors referred by the CIA and the Defense Department. A U.S. official said the Yoo memo’s legal arguments that interrogators are exempt from such criminal liability could have been part of the reason why those cases were dropped.
“Could it conceivably have played a role in deciding whether to prosecute or not? Certainly, in theory,” said a law enforcement official involved in the deliberations, who spoke on the condition of anonymity. “If there was a memo blessing behavior at a certain point in time, and someone relied on legal guidance, could they have formed the necessary intent” to break the law?
Charles Gittins, a lawyer representing Army Pvt. Charles A. Graner Jr. in his appeal of his abuse convictions tied to Abu Ghraib, said Yoo’s memo appears to show that President Bush suspended maltreatment laws for the military during a time of war. He said he plans to submit the document to Graner’s parole board when it meets in a few weeks.
Staff writers Carrie Johnson and Jerry Markon and staff researcher Julie Tate contributed to this report.
Source URL: http://www.washingtonpost.com/wp-dyn/content/article/2008/04/03/AR2008040304136.html