Leaked Torture Memo: Full Text
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Administration
Lawyers Ascribed Broad Power to Bush on Torture •
(Redacted)
UNCLASSIFIED WHEN SEPARATED FROM ATTACHMENT
Working Group Report
On
Detainee Interrogations in the Global War on
Terrorism;
Assessment of Legal, Historical, Policy, and
Operational Considerations
Classified by: Secretary Rumsfeld
Reason: 1.5 (C)
Declassify on: 10 years
Redacted
UNCLASSIFIED WHEN SEPARATED FROM ATTACHMENT
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II. International Law
(U) The following
discussion addresses the requirements of international law, as it pertains
to the Armed Forces of the
A.
The
(U) The laws
of war contain obligations relevant to the issue of interrogation techniques
and methods. It should be noted, however, that it is the position of
the U.S. Government that none of the provisions of the Geneva Convention
Relative to the Treatment of Prisoners of War of August 12, 1949 (Third
Geneva Convention) apply to al Qaida detainees because, inter
alia, al Qaida is not a High Contracting Party to the Convention.
As to the Taliban, the U.S. Position is that the provisions of
B. The 1994 Convention Against Torture
(U) the
(U) Article 1
of the Convention defines the term "torture" for purpose of the treaty.
The
…in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or
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(paragraph redacted).
(U)
Article I provides: "For the purpose of this convention, the term "torture"
means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punishing
him to an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation of or with the consensus
or acquiescence of a public official acting in an official capacity.
It does not include pain or suffering arising only from, inherent in
or incidental to lawful sanctions."
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Suffering refers to prolonged mental harm caused by or resulting from the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(U) Article 2
of the Convention requires the Parties to "take effective legislative,
administrative, judicial and other measures to prevent acts of torture
in any territory under its jurisdiction". The U.S. Government believed
existing state and federal criminal law was adequate to fulfill this
obligation, and did not enact implementing legislation. Article 2 also
provides that acts of torture cannot be justified on the grounds of
exigent circumstances, such as state of war or public emergency, or
on orders from a superior officer or public authority. The
(U) Article 3
of the Convention contains an obligation not to expel, return, or extradite
a person to another state where there are "substantial grounds" for
believing that the person would be in danger of being subjected to torture.
The
(U) Under Article
5, the Parties are obligated to establish jurisdiction over acts of
torture when committed in any territory under its jurisdiction or on
board a ship or aircraft registered in that state, or by its nationals
wherever committed. The "special maritime and territorial jurisdiction
of the United States" under 18.U.S.C. § 7 satisfies the U.S. obligation
to establish jurisdiction over torture committed in territory under
U.S. jurisdiction or on board a U.S. registered ship or aircraft. However,
the additional requirement of Article 5 concerning jurisdiction over
acts or torture by
(U) The
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(U)
18 U.S.C. § 2340 tracks this language. For a further discussion of the
(U)
But see discussion to the contrary at the Domestic Law section on the
necessity defense.
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(U) In addition to torture, the Convention prohibits cruel, inhuman and degrading treatment or punishment within territories under a Party’s jurisdiction (Art 16). Primarily because the meaning of the term "degrading treatment" was vague and ambiguous, the United States imposed a Reservation on this article to the effect that it considers itself bound only to the extent that such treatment or punishment means the cruel, unusual and inhuman treatment or punishment prohibited by the 5th, 8th, and 14th Amendments to the U.S. Constitution (see discussion infra, in the Domestic Law section),
(U) In sum, the obligations under the Torture Convention apply to the interrogation of unlawful combatant detainees, but the Torture Convention prohibits torture only as defined in the U.S. Understanding, and prohibits "cruel, inhuman, and degrading treatment and punishment" only to the extent of the U.S. Reservation relating to the U.S. Constitution.
(U)
An additional treaty to which the
C. Customary International Law
(U) The Department of Justice has concluded that customary international law cannot bind the Executive Branch under the Constitution, because it is not a federal law. In particular, the Department of Justice has opined that "under clear Supreme Court precedent, any presidential decision in the current conflict concerning the detention and trial of al-Qaida or Taliban militia prisoners would constitute a "controlling" Executive act that would immediately and completely override any customary international law."
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(U) Memorandum dated
(U)
Memorandum dated
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III. Domestic
Law
A. Federal
Criminal Law
1. Torture Statute
(U) 18
U.S.C. § 2340 defines as torture any "act committed by a person acting
under the color of law specifically intended to inflict severe physical
or mental pain…" The intent required is the intent to inflict severe
physical or mental pain. 18 U.S.C. § 2340A requires that the offense
occur "outside the
(U) Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States, and accordingly, is within the United States for the purposes of §2340, Thus, the Torture Statue does not apply to the conduct of U.S. personnel at GTMO. That GTMO is within the SMTJ of the United States is manifested by the prosecution of civilian dependents and employees living in GTMO in Federal District Courts based on SMTJ jurisdiction and Department of Justice opinion(11) and the clear intention of Congress as reflected in the 2001 amendment to the SMTJ. The USA Patriot Act (2001) amended § 7 to ad subsection 9, which provides:
"With respect to offenses
committed by or against a national of the
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(U)
Section 2340A provides, "Whoever
outside the Unites States commits or attempts to commit torture
shall be fined or imprisoned…"(emphasis added).
(U)
18 USC § 7, "Special maritime and territorial jurisdiction of the
(U)
Several paragraphs of 19 USC § 7 are relevant to the issue at hand.
Paragraph 7(3) provides: [SMTJ includes:] "Any lands reserved or acquired
for the use of the
(U)
6 Op.OLC236 (1982). The issue was the status of GTMO for purposes of
a statute banning slot-machines on "any land where the
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(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of maintaining those missions or entities, irrespective of ownership; and
(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.
Nothing in this paragraph shall be deemed to supercede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title.
(U) Any person
who commits an enumerated offense in a location that is considered within
the special maritime and territorial jurisdiction is subject tot the
jurisdiction of the
(U) For the purposes of this discussion, it is assumed that an interrogation done for official purposes is under "color of law" and that detainees are in DOD’s custody or control.
(U) Although
Section 2340 does not apply to interrogations at GTMO, it would apply
to
(U) To convict a defendant of torture, the prosecution must establish that: (1) the torture occurred outside the United States; (2) the defendant acted under color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990). ("For an act to be "torture," it must… cause severe pain and suffering, and be intended to cause severe pain and suffering.")
a. "Specifically Intended"
(U) To violate
Section 2340A, the statute requires that severe pain and suffering must
be inflicted with specific intent. See U.S.C. § 2340(1). In order for
a defendant to have acted with specific intent, he must have expressly
intended to achieve the forbidden act. See
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(U) Here,
because Section 2340 requires that a defendant act with the specific
intent to inflict severe pain, the infliction of such pain must be the
defendant’s precise objective. If the statute had required only general
intent, it would be sufficient to establish guilt by showing the defendant
"possessed knowledge with respect to the actus
[A] person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying "general intent"), he did not intend permanently to deprive the bank of its possession of the money (failing to satisfy "specific intent").
Carter, 530
(U) As a theoretical
matter, therefore, knowledge alone that a particular result is certain
to occur does not constitute specific intent. As the Supreme Court explained
in the context of murder, "the…common law of homicide distinguishes…between
a person who knows that another person will be killed as a result of
his conduct and a person who acts with the specific purpose of taking
another’s life[.]"
(U) Further,
a showing that an individual acted with a good faith belief that his
conduct would not produce the result that the law prohibits negates
specific interest. See, e.g.
South Atl. Lmtd. Ptrshp. Of
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c. Severe Mental Pain or Suffering
(U) Section 2340 gives further guidance as to the meaning of "severe mental pain or suffering" as distinguished from severe physical pain and suffering. The statute defines "severe mental pain or suffering" as:
the prolonged mental harm caused by or resulting from -
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality’
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
18 U.S.C.§ 2340(2). In order to prove "severe mental pain or suffering", the statute requires proof of "prolonged mental harm" that was caused by or resulted from one of four enumerated acts. We consider each of these elements.
i. "Prolonged Mental Harm"
(U) As an initial
matter, Section 2340(2) requires that the severe mental pain must be
evidenced by "prolonged mental harm". To prolong is to "lengthen in
time" or to "extend the duration of, to draw out". Webster’s Third New
International Dictionary 1815 (1988); Webster’s New International Dictionary
1980 (2d ed. 1935). Accordingly, "prolong" adds a temporal dimension
to the harm to the individual, namely, that the harm must be one that
is endured over some period of time. Put another way, the acts giving
rise to the harm must cause some lasting, though not necessarily permanent,
damage. For example, the mental strain experienced by an individual
during a length and intense interrogation such as one that state or
local police might conduct upon a criminal suspect, would not violate
Section 2340(2). On the other hand, the development of a mental disorder
such as posttraumatic stress disorder, which can last months or even
years, or even chronic depression, which can also last for a considerable
period of time is untreated, might satisfy the prolonged hard requirement.
See American Psychiatric
Association, Diagnostic and Statistical Manual
of Mental Disorders 426, 439-45 (4th ed. 1994) ("DSM-IV").
See also Craig Haney &
Mona Lynch, Regulating Prisons
of the Future: A Psychological Analysis of Supermax and Solitary Confinement,
23 N.Y.U. Rev. L. & Soc. Change 477, 509 (1977) (noting that
posttraumatic stress disorder is frequently found in torture victims);
cf Sana Loue, Immigration
Law and Health §
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who has experienced torture). By contrast to "severe pain" the phrase "prolonged mental harm" appears nowhere else in the U.S. Code nor does it appear in relevant medical literature or international human rights reports.
(U) Not only
must the mental harm be prolonged to amount to severe mental pain and
suffering, but also it must be caused by or result from one of the acts
listed in the statute. In the absence of a catchall provision, the most
natural reading of the predicate acts listed in Section 2340(2)(A)(D)
is that Congress intended the list to be exhaustive. In other words,
other acts not included within Section 2340(2)’s enumeration are not
within the statutory prohibition. See
Leatherman v.
(U) A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture. It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered prolonged mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute. The statute requires that the defendant specifically intend to inflict severe mental pain or suffering. Because that statute requires this mental state with respect to the infliction of severe mental pain and because is expressly defines severe mental pain in terms of prolonged mental harm, that mental state must be present with respect to prolonged mental harm. To read the statute otherwise would read the phrase "prolonged mental harm caused by or resulting from" out of the definition of "severe mental pain or suffering".
(U) A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith that his conduct would not
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the
DSM-IV explains that posttraumatic stress disorder )"PTSD") is brought
on by exposure to traumatic events, such as serious physical injury
or witnessing the deaths of others and during those events the individual
felt "intense fear" or "horror." Id at 424. Those suffering from
this disorder re-experience the trauma through, inter alia, "recurrent and intrusive
distressing recollections of the event", "recurrent distressing dreams
of the event", or "intense psychological distress at exposure to internal
or external cues that symbolize or resemble an aspect of the traumatic
event," Id at 428. Additionally, a person
with PTSD "[p]ersistently" avoids stimuli associated with the trauma,
including avoiding conversations about the trauma, places that stimulate
recollections about the trauma, and they experience a numbing of general
responsiveness, such as a "restricted range of affect (e.g., unable
to have living feelings)", and "the feeling of detachment or estrangement
from others." Ibid. Finally,
an individual with PTSD has "[p]ersistent symptoms of increased arousal,"
as evidenced by "irritability or outbursts of anger", "hypervigilance",
"exaggerate startle response", and difficulty sleeping or concentrating.
Ibid.
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amount to the
acts prohibited by the statute. Thus, if as defendant has a good faith
belief that his actions will not result in prolonged mental harm, he
lacks the mental state necessary for his actions to constitute torture.
A defendant could show that he acted in good faith by taking such steps
as surveying professional literature, consulting with experts, or reviewing
evidence gained from past experience. See, e.g., Ratlzlaf, 510
ii. Harm Caused By Or Resulting From Predicate Acts
(U) Section 2340(2) sets forth four basic categories of predicate acts. The first category is the "intentional infliction or threatened infliction of severe physical pain or suffering". The might at first appear superfluous because the statute already provides that the infliction of severe physical pain or suffering can amount to torture. This provision, however, actually captures the infliction of physical pain or suffering when the defendant inflicts physical pain or suffering with general intent rather than the specific intent that is required where severe physical pain or suffering alone is the basis for the charge. Hence, this subsection reaches the infliction of severe physical pain or suffering when it is only the means of causing prolonged mental harm. Or put another way, a defendant has committed torture when he intentionally inflicts severe physical pain or suffering with the specific intent of causing prolonged mental harm. As for the acts themselves, acts that cause "severe physical pain or suffering" can satisfy this provision.
(U)
Additionally, the threat of inflicting such pain is a predicate act
under the statute. A threat may be implicit or explicit. See, e.g.,
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we believe that the existence of a threat of severe pain or suffering should be assessed from the standpoint of a reasonable person in the same circumstances.
(U)
Second, Section 2340(2)(B) provides that prolonged mental harm, constituting
torture, can be caused by "the administration or application or threatened
administration or application of mind-altering substances or other procedures
calculated to disrupt profoundly the senses or the personality". The
statute provides no further definition of what constitutes a mind-altering
substance. The phrase "mind-altering substances" is found nowhere else
in the U.S. Code, nor is it found in dictionaries. It is, however, a
commonly used synonym for drugs. See, e.g.
(U) This subparagraph, section 2340(2)(B), however, does not preclude any and all use of drugs. Instead, it prohibits the use of drugs that "disrupt profoundly the senses or the personality". To be sure, one could argue that this phrase applies only to "other procedures", not the application of mind-altering substances. We reject this interpretation because the terms of Section 2340(2) expressly indicate that the qualifying phrase applies to both "other procedures" and the "application of mind-altering substances." The word "other" modifies "procedures calculated to disrupt profoundly the senses". As an adjective, "other" indicates that the term or phrase it modifies is the remainder of several things. See Webster’s Third New International Dictionary 1598 (1986) (defining "other" as "being the one (as of two or more) remaining or not included"). Or put another way, "other" signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. Moreover, where a statute couple words or phrases together, it "denotes an intention that they should be understood in the same general sense." Norman Singer, 2A Sutherland on Statutory Construction § 47:16 (6th ed. 2000); see also Beecham v. United States, 511 U.S. 368, 371 (1994) (that several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well.") Thus, the pairing of mind-altering substances with procedures calculated to disrupt profoundly the sense or personality and the use of "other" to modify "procedures" shows that the use of such substances must also cause a profound disruption of the senses or personality.
(U) For drugs or procedures to rise to the level of "disrupt[ing] profoundly the sense or personality", they must produce an extreme effect. And by requiring that they be "calculated" to produce such an effect, the statute requires that the defendant has consciously designed the acts to produce such an effect. 28 U.S.C. § 2340(2)(B). The word "disrupt" is defined as "to break asunder; to part forcibly; rend," imbuing the verb
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with a connotation of violence. Webster’s New International Dictionary 753 (2d ed 1935); see Webster’s Third new International Dictionary 656 (1986) (defining disrupt as "to break apart: Rupture" or "destroy the unity or wholeness of"); IV the Oxford English Dictionary 832 (1989) (defining disrupt as"[t]o break or burst asunder, to break in pieces; to separate forcibly"). Moreover, disruption of the senses or personality alone is insufficient to fall within the scope of this subsection; instead, that disruption must be profound. The word "profound" has a number of meanings, all of which convey a significant depth. Webster’s New International Dictionary 1977 (2 ed. 1935 defines profound as: "Of very great depth; extending far below the surface or top; unfathomable [:]…[c]oming from, reaching to, or situated at a depth of more than ordinary depth; not superficial; deep-seated; chiefly with reference to the body; as a profound sigh, wounded, or pain[;]…[c]haracterized by intensity, as of feeling or quality; deeply felt or realized; as, profound respect, fear, or melancholy; hence, encompassing; thoroughgoing; complete; as, profound sleep, silence, or ignorance." See Webster’s Third New International Dictionary 1812 (1986) ("having very great depth: extending far below the surface…not superficial"). Random House Webster’s Unabridged Dictionary 1545 (2d ed. 1999) also defines profound as "originating in or penetrating to the depths of one’s being" or "pervasive or intensive; thorough; complete" or "extending, situated, or originating far down, or far beneath the surface." By requiring that the procedures and the drugs create a profound disruption, the statute requires more than the acts "forcibly separate" or "rend" the senses or personality. Those acts must penetrate to the core of an individual’s ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality.
(U)
The phrase "disrupt profoundly the senses or personality" is not used
in mental health literature nor is it derived from elsewhere in
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(U) Published by the American Psychiatric Association,
and written as a collaboration of over a thousand psychiatrists, the
DSM-IV is commonly used in U.S. courts as a source of information regarding
mental health issues and is likely to be used in trial should charges
be brought that allege this predicate act. See, e.g., Atkins v. Virginia, 122
S. Ct. 2242, 2245 n. 3 (2002); Kansas V. Crane, 122 S. Ct. 867,
871 (2002); Kansas v. Hendricks,
521 U.S. 346, 359-60 )1997); McClean v. Merrifield, No. 00-CV-0120E
(SC), 2002 WI 1477607 at #2n.7 (W.D.N.Y. June 28, 2002); Peeples v. Coastal Office Prods.,
203 F. Supp 2d 432, 439 (D. Md 2002); Lassiegne v. Taco Bell Corp., 202
F. Supp 2d 512, 519 (E.D. La. 2002).
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or even one month. See id. We likewise think that the onset of obsessive-compulsive disorder behaviors would rise to this level. Obsessions are intrusive thoughts unrelated to reality. They are not simple worries, but are repeated doubts or even "aggressive or horrific impulses." See id. at 418. The DSM-IV further explains that compulsions include "repetitive behaviors" (e.g., hand washing, ordering, checking)" and that "[b]y definition, [they] are either clearly excessive or are not connected in a realistic way with what they are designed to neutralize or prevent", See id. Such compulsions or obsessions must be "time-consuming", See is at 419. Moreover, we think that pushing someone to the brink of suicide (which could be evidenced by acts of self-mutilation). Would be a sufficient disruption of the personality to constitute a "profound disruption". These examples, of course, are in no way intended to be an exhaustive list. Instead they are merely intended to illustrate the sort of mental health effects that we believe would accompany an action severe enough to amount to one that "disrupt[s] profoundly the sense or the personality."
(U)
The third predicate act listed in Section 2340 (2) is threatening an
individual with "imminent death", 18 U.S.C. § 2340(2)©. The plain text
makes clear that a threat of death alone is insufficient; the threat
must indicate that death is "imminent". The "threat of imminent death"
is found in the common law as an element of the defense of duress. See
Bailey, 444
(U) Fourth, if the official threatens to do anything previously described to a third party, or commits such an act against a third party, that threat or action san serve as the necessary predicate for prolonged mental harm. See 18 U.S.C. § 2340 (2)(D). The statute does not require any relationship between the prisoner and the third party.
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2. Other Federal Crimes that Could Relate to Interrogation Techniques
(U) Through the SMTJ, the following federal crimes are generally applicable to actions by military or civilian personnel; murder (18 U.S.C. § 1111), manslaughter (18 U.S.C. § 1112, assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), kidnapping (18 U.S.C. § 1201). These, as well as war crimes (18 U.S.C. § 2441)14 and conspiracy (18 U.S.C. § 371), are discussed below.
a. Assaults within maritime and territorial jurisdiction, 18 U.S.C. § 1139
(U) 18 U.S.C.
§ 113 proscribes assault within the special maritime and territorial
jurisdiction. Although section 113 does not define assault, courts have
construed the term "assault" in accordance with that term’s common law
meaning. See, e.g.,
(U) 18 U.S.C § 113 proscribes several specific forms of assault. Certain variations require specific intent, to wit: assault with intent to commit murder (imprisonment for not more than twenty years); assault with intent to commit any felony (except murder and certain sexual offenses) (fine and/or imprisonment for not more than ten years); assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse (fine and/or imprisonment for not more than ten years, or both). Other defined crimes require only general intent, it wit: assault by striking, beating, or wounding(fine and/or imprisonment for not more than six months); simple assault (fine and/or imprisonment for not more than six months), or if the victim of the assault is an individual who has not attained the age of 16 years (fine and/or imprisonment for not more than 1 year); assault resulting in serious bodily injury (fine and/or imprisonment for not more than ten years); assault resulting in serious bodily injury to an individual who has not attained the age of 16 years (fine and/or imprisonment for not more than 5 years). "Substantial bosily injury" means bodily injury which involves (A) temporary but substantial disfigurement; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. "Bodily injury" means (A) a cut, abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) illness; (D) impairment of
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14
(U) 18 U.S.C. § 2441 criminalizes the commission of war crimes by
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the function of a bodily member, organ, or mental faculty; or (E) any other injury to the body, no matter how temporary.
b. Maiming, 18 U.S.C. § 114
(U) Whoever with intent to torture (as defined in section 2340), maims, or disfigures, cuts, bites, or slits the nose, ear, or lip, or cuts out or disables the tongue, or puts out or destroys and eye, or cuts off or disables a limb or any member of another person’ or whoever, and with like intent, throws or pours upon another person, any scalding water, corrosive acid, or caustic substance shall be fines and/or imprisoned not more than twenty years. This is a specific intent crime.
c. Murder, 18 U.S.C. § 1111
(U) Murder is the unlawful killing of another human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or nay other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree. If within the SMTJ, whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. Murder is a specific intent crime.
d. Manslaughter, 18 U.S.C. § 1112
(U) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: (A) voluntary, upon a sudden quarrel or heat of passion and (B) involuntary, in the commission of an unlawful act amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.
(U) If within the SMTJ whoever is guilty of voluntary manslaughter, shall be fined and/or imprisoned not more than ten years; whoever is guilty of involuntary manslaughter, shall be fined and/or imprisoned not more than six years. Manslaughter is a general intent crime. A death resulting from the exceptional interrogation techniques may subject the interrogator to a charge of manslaughter, most likely of the involuntary sort.
e. Interstate Stalking, 18 U.S.C. § 2261A
(U) 18 U.S.C. § 2261A provides that "[w]hoever…travels…within the special maritime and territorial jurisdiction of the United States…with the intent to kill, injure, harass, or intimidate another person, and in the course of or as a result of, such travel
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places
that person in reasonable fear of the death of, or serious bodily injury
of that person." Thus there are three elements to a violation of 2261A:
(1) defendant traveled in interstate commerce; (2) he did do with the
intent to injure, harass, intimidate another person; (3) the person
he intended to harass or injure was reasonably place in fear of death
or serious bodily injury as a result of that travel. See
(U) The travel itself must have been undertaken with the specific intent to harass or intimidate another. Or put another way, at the time of the travel itself, the defendant must have engaged in that travel for the precise purpose of harassing another person. See Al-Zubaidy, 283 F.3d at 809 (the defendant "must have intended to harass or injure [the victim] at the time he crossed the state line").
(U)
The third element is not fulfilled by the mere act of travel itself.
See
(U) It is unlikely that this statute’s purpose is aimed at interrogations.
f. Conspiracy, 18 U.S.C. § 2 and 18 U.S.C. § 371(15)
(U) Conspiracy to commit crime is a separate offense from crime that is the object of conspiracy.(16) Therefore, where someone is charged with conspiracy, a conviction cannot be sustained unless the Government establishes beyond a reasonable doubt that the defendant had the specific intent to violate the substantive statute.(17)
(U)
As the Supreme Court most recently stated, "the essence of a conspiracy
is ‘an agreement to commit an unlawful act.’" Untied States v. Jimenez
Recio, --S.Ct. - , 2003 WL 139612 at *-- (
----------
(U) 18 U.S.C. § 2. Principals
(a) Whoever commits an offense against the
(b)
Whoever willfully causes an act to be done which if directly performed
by him or another would be an offense against the
18 U.S.C. § 371. Conspiracy to commit offense
or to defraud the
If
two or more persons conspire either to commit any offense against the
United States, or to defraud the United States, or any agency thereof
in any manner for any purpose, and one or more of such persons do any
act to effect the object of the conspiracy, each shall be fined under
this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which
is the object of the conspiracy, is a misdemeanor only, the punishment
for such conspiracy shall not exceed the maximum punishment provided
for such misdemeanor.
(U) United States v. Rabbinowich, 238 US 78, 59,
35 S.Ct 682, L. Ed 1211 (1915).
(U)
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Whether
or not the substantive crime ensues", Id at* (quoting
3. Legal doctrines under the Federal Criminal Law that could render specific conduct, otherwise criminal, not unlawful
(U) Generally, the following discussion identifies legal doctrines and defenses applicable to the interrogation of unlawful combatants, and the decision process related to them. In practice, their efficacy as to any person or circumstances will be fact-dependent.
a. Commander-in-Chief Authority
(U)
As the Supreme Court has recognized, and as we will explain further
below, the President enjoys complete discretion in the exercise of his
Commander-in-Chief authority including in conducting operations against
hostile forces. Because both "[t]he executive power and the command
of the military and naval forces is vested in the President," the Supreme
Court has unanimously stated that it is "the President alone who is
constitutionally invested with the entire charge of hostile operations."
Hamilton v. Dillin, 88
(U)
In light of the President’s complete authority over the conduct of war,
without a clear statement otherwise, criminal statutes are not read
as infringing on the President’s ultimate authority in these areas.
The Supreme Court has established a canon of statutory construction
that statutes are to be constructed in a manner that avoids constitutional
difficulties so long as a reasonable alternative construction is available,
See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490, 499-501 (1979) ) ("[W]here an otherwise
acceptable construction of a statute would raise serious constitutional
problems, [courts] will construe [a] statute to avoid such problems
unless such construction is plainly contrary to the intent of Congress.")
this canon of construction applies especially where an act of Congress
could be read to encroach upon powers constitutionally committed to
a coordinate branch of government. See, e.g.
(U) In the area of foreign affairs, and war powers in particular, the avoidance canon has special force. See, e.g., Dept of Navy v. Egan 484 U.S. 518, 530 (1988) ("unless Congress specifically has provided otherwise, courts traditionally have been
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Reluctant
to intrude upon the authority of the Executive in military and national
security affairs."); in Japan Whaling Ass’n v. American Cemcean Socy,
478
(U) In order to respect the President’s inherent constitutional authority to manage a military campaign, 18 U.S.C. § 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war. The President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander-in-Chief. A construction of Section 2340A that applied the provision to regulate the President’s authority as Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude it does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.
(U) This approach is consistent with previous decisions of the DOJ involving the application of federal criminal law. For example, DOJ has previously construes the congressional contempt statute as inapplicable to executive branch officials who refuse to comply with congressional subpoenas because of an assertion of executive privilege. In a 1984 opinion, DOJ concluded that
if executive officials were subject to prosecution for criminal contempt whenever they carried out the President’s claim of executive privilege, it would significantly burden and immeasurably impair the President’s ability to fulfill his constitutional duties. Therefore, the separation of powers principles that underlie the doctrine of executive privilege also would preclude an application of the contempt of Congress to punish officials for aiding the President in asserting his constitutional privilege.
Prosecution
for Contempt of Congress of an Executive Branch Official Who Has Asserted
A Claim of Executive Privilege, 8:Op O.L.C. 101, 143 (
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punish
officials for aiding the President in exercising his exclusive constitutional
authorities.
(U)
It could be argued that Congress enacted 18 U.S.C. § 2340A with full
knowledge and consideration of the President’s Commander-in-Chief power,
and that Congress intended to restrict his discretion; however, the
Department of Justice could not enforce Section 2340A against federal
officials acting pursuant to the president’s constitutional authority
to wage a military campaign. Indeed, in a different context, DOJ has
concluded that both courts and prosecutors should reject prosecutions
that apply federal criminal laws to activity that is authorized pursuant
to one of the President’s constitutional powers. DOJ, for example, has
previously concluded that Congress could not constitutionally extend
the congressional contempt statute to executive branch officials who
refuse to comply with congressional subpoenas because of an assertion
of executive privilege. They opined that "courts…would surely conclude
that a criminal prosecution for the exercise of a presumptively valid,
constitutionally based privilege is not consistent with the Constitution."
8 Op O.L.C. at 141. Further, DOJ concluded that it could not bring a
criminal prosecution against a defendant who had acted pursuant to an
exercise of the President’s constitutional power. "The President, through
a United States Attorney, need not, indeed may not, prosecute criminally
a subordinate for asserting on his behalf a claim of executive privilege.
Nor could the Legislative Branch or the courts require or implement
the prosecution of such an individual."
(U)
There are even greater concerns with respect to prosecutions arising
out of the exercise of the President’s express authority as Commander-in-Chief
than with prosecutions arising out of the assertion of executive privilege.
In a series of opinions examining various legal questions arising after
it must be admitted, as necessary consequences, that there can be no limitations of that authority, which is to provide for the defense and protection of the community, in any matter essential to its efficacy.
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most
efficacious defense of the nation and its interests in accordance "with
the realistic purposes of the entire instrument." Lichter v.
(U)
The text, structure, and history of the Constitution establish that
the Founders entrusted the President with the primary responsibility,
and therefore the power, to ensure the security of
----------
(U) See Johnson v. Eisentrager, 339
U.S. 763, 789 (1950) (President has authority to deploy United States
armed forces "abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 Flow)
603, 614-15 (1950) ("As commander-in-chief, [the President] is authorized
to direct the movements of the naval and military forces placed by law
at his command, and to employ them in a manner he may deem most effective")
Loving v. United States,
517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring
in judgment)(The inherent powers of the Commander-in-Chief "are clearly
extensive."): Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis
& Holmes J.T., concurring)(President "may direct any revenue cutter
to cruise in any water in order to perform any duty of the service");
Commonwealth Massachusetts v.
Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President
has "power as Commander-in-Chief to station forces abroad"); Ex
parte Vallandigham, 28 F. Cas. 874, 922 (C.C.B.D. Ohio (1863)(No.
16,816) (in acting "under his power where there is no express legislative
declaration, the president is guided solely by his own judgement and
discretion"); Authority to Use United States Military Forces in
(U) Judicial decisions since the beginning
of the Republic confirm the President’s constitutional power and duty
to repel military action against the
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(U) As the Supreme Court has recognized, the Commander-in-Chief
power and the President’s obligation to protect the nation imply the
ancillary powers necessary to their successful exercise. "The first
of the enumerated powers of the President is that he shall be Commander-in-Chief
of the Army and Navy of the
(U) One of the core functions of the Commander-in-Chief is that of capturing, detaining, and interrogating members of the enemy. It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners-may be interrogated for information concerning the enemy, its strength, and its plans. Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants during virtually every major conflict in the Nation’s history, including recent conflicts in Korea, Vietnam, and the Persian Gulf. Recognizing this authority, Congress has never attempted to restrict or interfere with the President’s authority on this score.
(U) Any effort by Congress to regulate the interrogation of
unlawful combatants would violate the Constitution’s sole vesting of
the Commander-in-Chief authority in the President. There can be little
doubt that intelligence operations, such as the detention and interrogation
of enemy combatants and leaders, are both necessary and proper for the
effective conduct of a military campaign. Indeed, such operations may
be of more importance in a war with an international terrorist organization
than one with conventional armed forces of a nation-state, due to the
former’s emphasis on secret operations and surprise attacks against
civilians. It may be the case that only successful interrogations can
provide the information necessary to prevent the success of covert terrorist
attacks upon the
(U) As this authority is inherent in the President, exercise of it by subordinates would be best if it can be shown to have been derived from the President’s authority through Presidential directive or other writing.
----------
(U) We note that this view is consistent with that of the Department of Justice.
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b. Necessity
(U) The defense of necessity could be raised, under the current circumstances, to an allegation of a violation of a criminal statute. Often referred to as the "choice of evils" defense, necessity has been defined as follows:
conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:
(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and
(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
Model Penal Code 3.02. See also Wayne R. LaFave & Austin
W. Scott. I Substantive Criminal Law 5.4 at 627 (1986 &2002 app:)("LaFave
& Scott"). Although there is no federal statute that generally establishes
necessity or other justifications as defenses to federal criminal laws,
the Supreme Court has recognized the defense. See United States v. Bailey, 444
(U) The necessity defense may prove especially relevant in
the current circumstances. As it has been described in the case law
and literature, the purpose4 behind necessity is one of public policy.
According to LaFave & Scott, "the law ought to promote the achievement
of higher values at the expense of lesser values, and sometimes the
greater good for society will be accomplished by violating the literal
language of the criminal law." LaFave & Scott, at 629. In particular,
the necessity defense can justify the intentional killing of one person
to save two others because "it is better that two lives be saved and
one lost than that two be lost and one saved" Id. or, put in the language of
choice of evils, "the evil involved in violating the terms of the criminal
law (…even taking another’s life) may be less than that which would
result from literal compliance with the law (…two lives lost)".
(U) Additional elements of necessity defense are worth noting
here. First, the defense is not limited to certain types of harms. Therefore,
the harm inflicted by necessity may include intentional homicide, so
long as the harm avoided is greater (i.e., preventing more deaths)
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Rescued without the necessity of killing B," Id. Fourth, it
is for the court, and not the defendant to judge whether the harm avoided
outweighed the harm done.
[Area Removed from Document]
(U) Legal authorities identify an important exception to the
necessity defense. The defense is available "only in situations wherein
the legislature has not itself, in its criminal statute, made determination
of values."
----------
In the CAT, torture is defined as the
intentional infliction of severe pain or suffering "for such purposes
of obtaining from him or a third person information or a confession."
CAT art 1.1 One could argue that such a definition represented an attempt
to indicate that the good of obtaining information - no matter what
the circumstances - could not justify an act of torture. In other words,
necessity would not be a defense. In enacting Section 2340, however,
Congress removed the purpose element in the definition of torture, evidencing
an intention to remove any fixing of values by statute. By leaving,
Section 2340 silent6 as to the
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c. Self-Defense
(U) Even if a court were to find that necessity did not justify the violation of a criminal statue, the defendant could still appropriately raise a claim of self-defense. The right to self-defense, even when it involves deadly force, is deeply embedded in our law, both as to individuals and as to the nation as a whole. As the Court of Appeals for the D.C. Circuit has explained:
More than two centuries ago, Blackstone, best known of the expositors of the English common law taught that "all homicide is malicious, and of course amounts to murder, unless…excused on the account of accident or self preservation". Self-defense, as a doctrine legally exonerating the taking of human life, is as viable now as it was in Blackstone’s time.
(U) The doctrine of self-defense permits the use of force to
prevent harm to another person. As LaFave and Scott explain, one is
justified in using reasonable force in defense of another person, even
a stranger, when he reasonably believes that the other is in immediate
danger of unlawful bodily harm from his adversary and that the use of
such force is necessary to avoid this danger."
----------
harm done by torture in comparison
to other harms, Congress allowed the necessity defense to apply when
appropriate.
Further, the CAT contains an additional
provision that "no exceptional circumstances whatsoever, whether a state
of war or a threat of war, internal political instability or any other
public emergency, may be invoke4d as a justification of torture," CAT
art. 2.2 Aware of this provision of the treaty and of the definition
of the necessity defense that allows the legislature to provide for
an expection to the defense. See Model Penal Code 3,02(b), Congress
did not incorporate CAT article 2.2 into Section 2-4. Given that Congress
omitted CAT’s effort to bar a necessity or wartime defense, Section
2340 could be read as permitting defense.
(U) Early cases had suggested that
in order to be eligible for defense of another, one should have some
personal relationship with the one in need of protection. That view
has been discarded. LaFave & Scott at 664.
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(U) First, self-defense requires that the use of force be necessary
to avoid the danger of unlawful bodily harm.
(U) Second, self-defense requires that the defendant’s belief
in the necessity of using force be reasonable. If a defendant honestly
but unreasonably believed force was necessary, he will not be able to
make out a successful claim of self-defense.
(U) Third, many legal authorities include the requirement that
a defender must reasonably believe that the unlawful violence is "imminent"
before he can use force in his defense. It would be a mistake, however,
to equate imminence necessarily with timing that an attack is immediately
about to occur. Rather, as the Model Penal Code explains, what is essential
in that the defensive response must be "immediately necessary." Model
Penal Code 3.04(1). Indeed, imminence must be merely another way of
expressing the use of force may be justified. To use a well-known hypothetical,
if A were to kidnap and confine B, and then tell B he would kill B one
week later, B would be justified in using force in self-defense, even
if the opportunity arose before the week had passed.
(U) Fourth, the amount of force should be proportional to the threat. As LaFave and Scott explain, "the amount of force which [the defender] may justifiably use must be reasonably related to the threatened harm which he seeks to avoid." LaFave and Scott at 651. thus, one may not use deadly force in response to a threat that does not rise to death or serious bodily harm. If such harm may result however, deadly force is appropriate.
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is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act done pursuant to a superior’s orders be murder, the production of the order will not make it any less so. It may mitigate but it cannot justify the crime. We are of this view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of the crime exists and the inferior [sic] will be protected. But the general rule is the members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability obeying a command which violates international law and outrages fundamental concepts of justice.
The Hostage Case
(
(U) The international Military Tribunal at
(U) domestically, the UCMJ discusses the defenses of superior order in The Manual Courts-Martial, which provides in R.C.M. 916(d), MCM 2002:
It is a defense to any offense that the accused was acting pursuant to orders unless the accused know the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful. An act performed pursuant to a lawful order is justified. An act performed pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have know the orders to be unlawful.
Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.
(U) In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.
----------
(U) Trial of Major War Criminals before
the International Military Tribunal, Nuremberg 14 November 1945-1 October
1946 at 224 (1947), excerpted in U.S. Naval War College, International
Law Documents, 1946-1947, at 260 (1948).
(U) This inference does not apply to
a patently illegal order, such as one that directs the confession of
a crime. (Article 90, UCMJ).
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A. Lack of DOJ Representation for DOD Personnel Charged with a Criminal Offense
(U) DOJ representation of a defendant is generally not available in federal criminal proceedings, even when the defendant’s actions occur within the scope of federal employment.
B. Federal Civil Statutes
1. 28 U.S.C. 1350
(U) 28 U.S.C. 1350 extends the jurisdiction of the U.S. District
Courts to "any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the
2. Torture Victims Protection Act (TVPA
(U) In 1992, President Bush signed into law the Torture Victims Protection Act of 1991. Appended to the U.S. Code as a note to section 1350, the TVPA specifically creates a cause of action for individuals (or their successors) who have been subjected to torture or extra-judicial killing by "an individual who, under actual or apparent authority,
----------
(U) 28 CFR 50.15 (a)(4)
(U) 28 U.S.C 1350, the Alien Tort Claim
Act (ATCA).
(U) See, for example, Ababe-Jva v. Negano, No 93-9133.
United States Court of Appeals, Eleventh Circuit,
(U) Al Odah v.
(U) Filartiga v Pena-Irale, 630 F.2d
76 (2nd Cir. 1980) 885, note I, "conduct of the type alleged
here [torture] would be actionable under 42 U.S.C. 1983, or undoubtedly
the Constitution, if performed by a government official."
(U)Pub. I. No. 102-256, 106 Stal. 73,
28 U.S.C 1350 (note).
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or color of law, of any foreign nation (1) subjects an individual
to torture shall in a civil action, be liable for damages to that individual;
or (2) subjects an individual to extra judicial in a civil action, be
liable for damages…." (emphasis added) It thus appears that
the TVPS does not apply to the conduct of
C. Applicability
of the
1. Applicability o the Constitution to aliens Outside the United States
(U) Nonresident enemy aliens do not enjoy constitutional rights
outside the sovereign territory of the
(U) Although
2. The
Constitution Defining
(U) In the course of taking reservations to the Convention
Against Torture and Other Cruel, and Inhuman or Degrading Treatment
or Punishment, the United States determined that the Conventionw’s prohibitions
against cruel, inhuman or degrading treatment or punishment applied
only to the extent that such conduct was prohibited by the Fifth, Eighth
and Fourteenth Amendments to our Constitition. Consequently, analysis
of these amendments is significant in determining the extent to which
the
----------
(U) The definition of torture used
in PL 102-256(a) "any act, directed against an individual in the offender’s
custody or physical control, by which severe pain or suffering (other
than pain or suffering arising only from or inherent in, or incidental
to lawful sanctions) whether physical or mental, is intentionally inflicted
on that individual for such purposes as obtaining from that individual
or a third person information or a confession, punishing that individual
for an act that individual or a third person has committed or is suspected
of having committed,, intimidating or coercing that individual or a
third personk, or for any reason based on discrimination of any king."
This is similar but broader, than the definition in the Torture Statute.
The definition of mental pain and suffering is the same as in the Torture
Statute.
(U) Eisenstrager 764.
(U) Al Odah v.
(U) Articles of ratification,
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or the 8th Amendment. See, Johnson v. Eisenberger,
339
a. Eighth Amendment
(U) "An examination of the history of the Amendment and the decisions of this [Supreme] Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes" The import of this holding is that, assuming a detainee could establish standing to challenge his treatment the claim would not lie under the 8th Amendment. Accordingly, it does not appear detainees could successfully pursue a claim regarding their pre-conviction treatment under the Eighth Amendment.
(U) The standards of the Eighth Amendment are relevant, however,
due to the U.S. Reservation to the Torture Convention’s definition of
cruel, inhuman, and degrading treatment. Under "cruel and unusual punishment"
jurisprudence, there are two lines of analysis: (1) conditions of confinement,
and (2) excessive force. As a general matter, the excessive fore analysis
applies to the official use of physical force, often in situations in
which an inmate has attacked another inmate or a guard whereas the conditions
of confinement analysis applies to such things as administrative segregation.
Under the excessive force analysis, "a prisoner alleging excessive for4ce
must demonstrate that the defendant acted "maliciously and sadistically
to cause harm." Porter v. Nussle, 534
(U) A condition of confinement is not "cruel and unusual" unless
it (1) is "sufficiently serious" to implicate constitutional protection,
id. at 347, and (2) reflects "deliberate indifference" to the prisoner’s
health or safety, Farmer v Brennan 511 U.S. 825,
834 (1994). The first element is objective, and inquires whether the
challenged condition is cruel and unusual. The second, so-called "subjective’
element requires examination of the actor’s intent and inquires whether
the challenged condition is imposed as punishment. Wilson v. Selter, 501
(U) The Supreme Court has noted that "[n]o static ‘test’ can
exist by which courts determine whether conditions of confinement are
cruel and unusual, for the Eighth Amendment must draw its meaning from
the evolving standards of decency that mark the progress of a maturing
society." Rhodes, 452
----------
(U) Ingraham v. Wright, 430
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"broad and idealistic concepts of dignity, civilized standards, humanity, and decency") Nevertheless, certain guidelines emerge from the Supreme Court’s jurisprudence.
(U) The court has established that "only those deprivations
denying "the minimal civilized measures of life’s necessities’ sufficiently
grave to form the basis of an Eighth Amendment violation." Wilson,
501
(U) The various conditions of confinement are not to be assessed
under a totality of the circumstances approach. In
(U) To demonstrate deliberate indifference, a prisoner must
demonstrate "that the official was subjectively aware of that risk".
Farmer v. Brennan 511
We hold… that a prison official cannot be found liable under the Eighth Amendment for denying any inmate humane conditions of confinement unless the official knows of and regards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists and he must also draw the inference.
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that "[t]his primitive treatment amount [ed] to [the] gratuitous
infliction of ‘wanton and unnecessary’ pain that our precedent clearly
prohibits."
(U) The government interest here is of the highest magnitude.
The typical prison case, the protection of other inmates or officers,
the protection of the inmate alleged to have suffered the cruel and
unusual punishment, or even the maintenance of order in the prison provide
valid government interests for various deprivations. See e.g. Anderson v. Nosser, 438 F.2d 183, 193 (5th
Cir. 1971) ("protect[ing] inmates from self-inflicted injury, protect[ing]
the general prison population and personnel from violate acts on his
part, prevent[ing] escape" are all legitimate penological interests
that would permit the imposition of solitary confinement); McMahon
v. Beard, 583 F.2d 172, 175 (5th
Cir. 1978) (prevention if inmate suicide is a legitimate interest).
If the protection of one person or even prison administration can be
deemed to be valid governmental interests in such cases frequently permitted
deprivations, it follows a fortiori that the interest of the
(U) Fifth Amendment and Fourteenth Amendment"
(U) "It is now the settled doctrine… that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just"49 Due process is violated if a practice or rule "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental".50
(U) Standing by itself, the phrase "due process" would seem to refer solely and simply to procedure, to process in court, and therefore to be so limited that "due process of law" would be what the legislative branch enacted it to be. But that is not the interpretat8ion which has been placed on the term. "It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law’
----------
(U) Because the Due Process considerations
under the 5th and 14th amendments are the same
for our purposes, this analysis considers them together.
(U) Solesbee v. Batkcom, 339
(U) Snyder v.
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Reserve component and retired regular officers can, under certain circumstances, also be subject to the UOMJ, as can civilians accompanying the Armed Forces in time of war under certain circumstances.
1. (U) Offenses
(U) a number of UCMJ provisions potentially apply to service members involved in the interrogation and supervision of the interrogation of detainees. Most significant are the following:
a. Cruelty, Oppression or Maltreatment, Art 93
(U) The elements of the offense are that the alleged victim
was subject to the orders of the accused and that the accused was cruel
toward, oppressed, or maltreated the victim. The cruelty, etc. need
not be physical. Subject to the orders of, includes persons, subject
to the UCMJ or not, who are by some reason of some duty are required
to obey the lawful orders of the accused, even if not in the direct
chain of command of the accused. "Cruel", "oppressed", and "maltreated"
refer to unwarranted, harmful, abusive, rough or other unjustifiable
treatment that, under all the circumstances, results in physical or
mental pain or suffering and is unwarranted, unjustified and unnecessary
for any lawful purpose. It is measured by an objective standard. MCM
IV-25; MJB, Section
b. Reckless Endangerment, Art 134
(U) The elements of the offense are that the accused engaged in wrongful conduct that was reckless or wanton and that the conduct was likely to produce death or grievous bodily harm. "[L]ikely to produce" means the natural or probable consequences of particular conduct. "[G}rievous bodily harm" includes injuries comparable to fractured or dislocated bones, serious damage to internal organs. MCM IV-119; MJB, Section 3-100A-1.
c. Assault, Art 128
(U) This article encompasses the following offenses:
(U) Simple assault – The elements are that the accused attempted or offered to do bodily harm to an individual and that such attempt or offer was done with unlawful force and violence. An act of force or violence is unlawful if done without legal justification or excuse and without the consent of the victim. The use of threatening words accompanied by a menacing act or gesture may constitute an assault. MCM IV-81; MJB, Section 3-54-1.
----------
(U) Article 2 UCMJ; Rules for Courts-Martial,
Rule 202, and Discussion.
(U) The following are extracted from the Department of the army Pamphlet 27-9, Military Judges’ Benchbook (MJB), which summarizes the requirements of the Manual for Courts-Martial (MCM) and case law applicable to trials by courts martial.
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(U) Assault consummated by battery – An assault resulting in actual infliction of bodily harm is a batter. Bodily harm means any physical injury to or offensive touching, however slight. MCM IV-83; MJB, Section 3-54-1A.
(U) Aggravated assault (use of a dangerous weapon, means or force) – In addition to the elements of an assault, this offense requires that the means or force attempted or offered was used in a manner likely to produce death or grievous bodily harm. Any object, regardless of its normal use, could become a means likely to inflict grievous bodily harm depending on the manner in which it is actually used. MCM IV-84; MJB, Section 3-54-8.
(U) There are multiple instances in which authority and context permit touching - by police officers, prison guards, training NCOs, etc. - that would not be lawful under other circumstances. A central issue would be how clearly the limits of authority were defined and whether under the circumstances the individual exceeded the scope of that authority.
d. Involuntary Manslaughter, Art 119
(U) The elements of this offense are that acts or omissions constitution culpable negligence resulted in an unlawful killing. Culpable negligence contemplates a level of heedlessness in circumstances in which, when viewed in the light of human experience, might foreseeably result in death. MCM IV-64. Failure to assiduously follow protocols providing for the health and safety of detainees during interrogations of detainees, could amount to such culpable negligence, MJB, Section 3-44-2.
e. Unpremeditated Murder, Art 118
(U) The relevant elements of the offense are that the person is dead, his death resulted from the act or failure to act of the accused, that the killing was unlawful, without legal justification, and at that time the accused had the intent to inflict great bodily harm upon the person. MCM IV-118, MTB, Section 3-43-2.
f. Disobedience of Orders, Art 92
(U) This offense is committed when the accused, having a duty to do so, fails to obey lawful orders or regulations, MCM IV-23; MJB, Section 3-16. the duty to obey may extend to treaties and statuettes as well as regulations. The Convention against Torture and the general case law regarding cruel and unusual punishment may be relevant here as it is for Article 93, See generally, Wilson v. Setter, 501 U.S. 294 (1991).
g. Dereliction of Duty, Art 92
(U) A dereliction occurs when an individual knew or should
have known of certain prescribed duties and either wilfully or through
neglect was derelict in the perfro4rmance of those duties. MCM IV-24;
MJB, Section
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As well as statues and treaties that have become the law of the land may create duties for purposes of this article.
h. Maiming, Art 124
(U) The elements of this offense are that the accused intentionally inflicted an injury on a person, and whether intended or not, that the injury seriously disfigured the person’s body, destroyed or disabled an organ or member, or seriously diminished the person’s physical vigor. MCM IV-77; MJB, Section 3-50-1.
2. Affirmative Defenses under the UCMJ (R.C.M. 916)
(U) In order for any use of force to be lawful, it must either be justified under the circumstances or an accepted affirmative defense is present to excuse the otherwise unlawful conduct. No case law was found that defines at what point force or violence becomes either lawful or unlawful during war. Each case is by its nature, dependent upon the factual circumstances surrounding the incident.
(U) Applying accepted rules for law of armed conflict, the use of force is only authorized when there is a mili5tary purpose and the force used is no greater than necessary to achieve the objective. The existence of war does not in and of itself justify all forms of assault. For instance , in United States v. Calley, 22 U.S.C.M.A 534k, 48 C.M.R:19 (1973), the court recognized that "while it is lawful to kill an enemy in the heat and exercise of war, to kill such an enemy after he has laid down his arms…is murder." Further, the fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment. The thrust of these holdings is that even in war, limits to the use and extent of force apply.
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a. Self-Defense
(U) for the right of self-defense to exist, the accused must have had a reasonable apprehension that death or grievous bodily harm was about to be inflicted on himself. The test is whether, under the same facts and circumstances, an ordinary prudent adult person faced with the same situation would have believed that there were grounds to fear immediate death or serious bodily harm (an objective test) and the person must have actually believed that the amount of force used was required to protect against death or serious bodily harm (a subjective test). Grievous bodily harm means ser8ious bodily injury. It does not mean minor injuries such as a black eye or a bloody nose, but does mean fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs or other serious bodi8ly injuries. MJB, Section 5-2. (See also the discussion of "Self-Defense" under the discussion of Federal law, supra.)
b. Defense of another
(U) For this defense, the accused must have had a reasonable
belief that harm was about to be inflicted and that the accused actually
believed that force was necessary to protect that person. The accused
must actually believe that the amount of force used was necessary to
protect against the degree of harm threatened. MJB, Section
c. Accident
(U) The defense arises when an accused is doing a lawful act I a lawful manner, free of any negligence, and unforeseeable or unintentional death or bodily harm occurs. MJB, Section 5-4.
d. Mistake of Fact
(U) If ignorance or mistake of a fact5 concerns an element of an offense involving specific intent, the ignorance or mistake need only exist in the mind of the accused, i.e., if the circumstances of an event were as the accused believed, there would be no offense. For crimes not involving specific intent, the ignorance or mistake must be both honest (actual) and reasonable. The majority of the crimes discussed above do not require specific intent. For instance, in the case of violations of general orders, knowledge is presumed. Most of the "mistakes" would likely be mistakes of law in that the accused would not believe that the conduct was unlawful. While mistakes of law are generally not a defense, unawareness of a law may be a defense to show the absence of a criminal state of mind when actual knowledge is not necessary to establish the offense. MJB, Section 5-11.
e. Coercion or duress
(U) It is defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately
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Suffer serious bodily injury if the accused did not commit the act. This apprehension must
reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply. R.C.M. 916(h), MJB, Section 5-5.
(U) To establish a duress defense it must be shown that an accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily harm if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply. The Court of Appeals stated in United States v. Fleming, 23 C.M.R. 7 (1957), that the defense of duress is available to an accused only if the commission of the crime charged resulted from reasonable fear of imminent death or grievous bodily harm to himself of his family. The risk of injury must continue throughout the criminal venture.
f. Obedience
to Orders (MJB, Sections
(U) The viability of obedience to orders as a defense turns on the directives and policy of the service member’s Chain of Command. For example, when the interrogator at the direction of the command employs the use of physical force as an interrogation method, he/she would certainly raise the defense of obedience to orders. The question then becomes one of degree. While this may be a successful defense to simple assaults or batteries, it would unlikely be as successful to more serious charges such as maiming, manslaughter, and maiming. Within the middle of the spectrum lay those offenses for which the effectiveness of this defense becomes less clear. Those offenses would include conduct unbecoming an officer, reckless endangerment, cruelty, and negligent homicide.
(U) Obedience to orders provides a viable defense only to the extent that the accused acted under orders, and did not know (nor would a person of ordinary sense have known? The orders were unlawful. This the viability of this defense is key to the accused’s (or a reasonable person’s) knowledge of the lawfulness of the order. Common sense suggests that the more aggressive and physical the technique authorized (ordered) by the command, the more unlikely the reasonable belief that the order to employ such methods is lawful.
(U) In order for any use of force to be lawful, it must either (i) be justified under the circumstances or (ii) an accepted affirmative defense is present to excuse the otherwise unlawful conduct. No case law was found that defines at what point force or violence becomes either lawful or unlawful during war. Each case is by its nature, dependent upon the factual circumstances surrounding the incident.
(U) applying accepted rules for the law of armed conflict, the use of force is only authorized when there is a military purpose and the force used is no greater than
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necessary to achieve the objective. The existence of war does not in and of itself justify all forms of assault. For instance, in US v. Calley, the court recognized that "while it is lawful to kill an enemy in the heat and exercise of war, to kill such an enemy after he has laid down his arms…is murder." Further, the fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment." The thrust of these holdings is that even in war, limits to the use and extent of force apply.
g. Necessity
(U) another common law affirmative defense is one of necessity. This defense is recognized by a number of states and is applicable when: 1) the harm must be committed under the pressure of physical or natural force, rather than human force; 2) the harm so8ught to be avoi8ded is greater than (or at least equal to) that harm sought to be prevented by the law defining the offense charged; 3) the actor reasonably believes at the moment that his act is necessary and is designed to avoid the greater harm; 4) the actor must be without fault in bringing about the situation; and 5) the harm threatened must be imminent, leaving no alternative by which to avoid the greater harm.
(U) However, military courts have treated the necessity defense
with disfavor and in fact, some have refused to accept necessity as
a permissible defense (the MCM does not list necessity as an affirmative
defense under RCM 916). "The problem with the necessity defense is that
it involves a weighing of evil inflicted against evil avoided and is,
thereby, difficult to legislate." The courts also have been reluctant
to embrace the defense due to a "fear that private moral codes will
be substituted for legislative determination, resulting in a necessity
exception that swallow’s the rule of law."
(U) The effect of these cases is that the MCM recognizes that
an accused may commit an illegal act in order to avoid the serious injury
or death of the accused or an innocent person. However, military law
limits this defense only when there is an imminent and continuing harm
that requires immediate action to prevent. One the immediacy is gone,
the defense will no longer apply. Ostensibly, the use of force to acquire
information from an unlawful combatant, absent immediate and compelling
circumstances, will not meet the elements established by the MCM and
case law. (But see the necessity defense in the discussion of Federal
law, supra.)
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3. Legal doctrine could render specific conduct, otherwise criminal, not unlawful
See discussion of Commander-in-Chief authority, supra.
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IV. Considerations Affecting Policy
A. Historical Role of
1. Background
(U) The basic principles of interrogation doctrine, procedures, and techniques applicable to Army intelligence interrogations from June 1945 through May 1987 were continued in Field Manual (FM) 30-15, Examination of Personnel and Documents. FM 30-15 set forth Army doctrine pertaining to the basic principles of intelligence interrogation and established the procedures and techniques applicable to Army intelligence interrogations of non-U.S. personnel. The other services report that they too apply the provisions of this Field Manual.
2. Interrogation Historical Overview
(U) FM 30-15 stated that the principles and techniques of interrogation
discussed within the manual are to be used within the constraints established
by humanitarian international law and the Uniform Code of Military Justice
("UCMJ"). The fundamental principle underlying Army doctrine concerning
intelligence interrogations between 1045 and the issuance of current
doctrine in 1987 (FM 34-52), is that the commander may utilize all available
resources and lawful means in the accomplishment of his mission and
for the protection and security of his unit. However, a strong caveat
to this principle noted, "treaty commitments and policy of the United
States, international agreements, international law, and the UCMJ require
the conduct of military to conform with the law of war." FM30-15 also
recognized that Army intelligence interrogations must conform to the
"specific prohibitions, limitations, and restrictions established by
the Geneva Conventions of
(U) FM 30-15 also stated that "violations of the customary
and treaty law applicable to the conduct of war normally constitutes
a concurrent violation of the Uniform Code of Military Justice and will
be prosecuted under that code." The manual advised Army personnel that
it was "the direct responsibility of the Commander to insure that the
law of war is respected in the conduct of warfare by forces in his command."
This, the intelligence interrogation techniques outlined in FM 30-15
were based upon conduct sanctioned under international law and domestic
(U) Historically, the intelligence staff officer (G2/S2) was the primary Army staff officer responsible for all intelligence functions within the command structure. This responsibility included interrogation of enemy prisoners of war (EPW), civilian internees, and other captured or detained persons. In conducting interrogations, the intelligence staff officer was responsible for insuring that the activities were executed in accordance with international and domestic U.S. law, United States Government policy, and the applicable regulations and field manuals regarding the treatment and handling of EPWs,
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civilian internees and other captured or detained persons.
In the maintenance of interrogation collection, the intelligence staff
officer was required to provide guidance and training to interrogators,
assign collection requirements, promulgate regulations, directives,
and field manuals regarding intelligence interrogation, and insure that
interrogators were trained in international and domestic
(U) FM 30-15 stated that intelligence interrogations are an art involving the questioning and examination of a source in order to obtain the maximum amount of usable information. Interrogations are of may types, such as the interview, a debriefing and an encitation. However, the FM made clear that the principles of objective, initiative, accuracy, prohibitions against the use of force, and security apply to all types of interrogations. The manual indicated that the goal is to collect usable and reliable information, in a lawful manner, promptly, while meeting the intelligence requirements of the command.
(U) FM 30-15 emphasized a prohibition on the use of force during interrogations. This prohibition included the actual use of force, mental torture, threats, and exposure to inhumane treatment of any kind. Interrogation doctrine, procedures, and techniques concerning the use of force are based upon prohibitions in international and domestic U.S. law, FM 30-15 stated that experience revealed that the use of force was unnecessary to gain cooperation and was a poor interrogation technique, given that its use produced unreliable information, damaged future interrogations, and induced those being interrogated to offer information viewed as expected in order to prevent the use of force. However, FM 30-15 stated that the prohibition on the use of force, mental or physical must not be confused with the use of psychological tools and deception techniques designed to induce a source into providing intelligence information.
(U) The Center for Military History has been requested to conduct a search of government databases, to include the Investigative Records Repository, for documentation concerning the historical participation of the U.S. Armed Forces in interrogations and any archival materials related to interrogation techniques. As of the writing of this analysis no reply has been received.
3. Current Doctrine
(U) In May 1987, the basic principles of current doctrine, procedures, and techniques applicable to Army intelligence interrogations were promulgated in Field Manual (FM) 34-52, Intelligence Interrogation. FM 34-52 provides general guidelines for commanders, staff officers, and other personnel in the use of interrogation elements in Army intelligence units. It also outlines procedures for handling sources of interrogations, the explitation and processing of documents, and the reporting of intelligence gained through interrogation. Finally, FM 34-52 covers directing and supervising interrogation operations, conflict scenarios, and their impact on interrogation operations, to include peacetime interrogation operations.
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(U) Army interrogation doctrine today, and since 1945, places
particular emphasis on the humane handling of captured personnel. Interrogators
receive specific instruction by Army Judge Advocates on the requirements
of international and domestic
(U)FM 34-52 adopted the principles and framework for conducting intelligence interrogations as stated in FM 30-15. FM 34-52 maintained the establ8ished Army doctrine that intelligence interrogations involve the art of questioning and examining a source in order to obtain the maximum amount of useable information,. FM 34-52 also reiterated Army doctrine that the principles of objective, initiative, accuracy, prohibition on the use of force, and security apply to all types of interrogations. The goal of intelligence interrogation under current doctrine is the same, the collection of usable and reliable information promptly and in a lawful manner, while meeting the intelligence requirements of the command.
(U) FM 34-52 and the curriculum at U.S. Army Intelligence Center,
(U) FM 34-52 outlines procedures and approach techniques for conducting Army interrogations. While the approach techniques are varied, there are three common purposes: establish and maintain control over the source and the interrogation, establish and maintain rapport between the interrogator and the source, and manipulate the source’s emotions and weaknesses to gain willing cooperation. Approved techniques include: Direct Incentive; Emotional (Love & Hate); Increased Fear Up (Harsh & Mild); Decreased Fear Down; Pride and Ego (UP & Down); Futility Technique, We Know All; Establish Your Identity; Repetition, File and Dossier, and Mutt and Jeff (Friend and Foe). These techniques are discussed at greater length in Section V, infra.
B. Presidential and Secretary of Defense Directives
(U) The President’s Military Order that addresses the detention, treatment, and trial of certain non-citizens in the war against terrorism, provides inter alta, that any
----------
(U) Military Order - Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against Terrorism, President
of the
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Administration Lawyers Ascribed Broad Power
to Bush on Torture
By David G. Savage and Richard B. Schmitt
Los Angeles Times
Thursday 10 June 2004
In a memo dated weeks after the invasion of Iraq, administration counsel said the president's authority superceded Congress'.
Washington - On the eve of the war in Iraq, Bush administration lawyers spelled out a strikingly broad view of the president's power that freed the commander in chief and U.S. military from the federal law and international treaties that barred the use of torture.
In past wars, presidents have claimed special powers. During the Civil War, President Lincoln suspended habeas corpus and allowed accused traitors to be tried before military courts. Shortly after the Japanese attack on Pearl Harbor, President Franklin D. Roosevelt issued an order authorizing the military to intern thousands of Japanese Americans.
In those instances, however, the president acted with the approval of Congress. Rarely, if ever, have the president's advisors claimed an authority to ignore the law as written by Congress.
The legal memo, written last year for the Defense Department and disclosed this week, did not speak for President Bush, but it claimed an extraordinary power for him. It said that as the commander in chief, he had a "constitutionally superior position" to Congress and an "inherent authority" to prosecute the war, even if it meant defying the will of Congress.
Congress adopted an anti-torture law in 1994 that barred Americans abroad acting under U.S. authority from inflicting "severe physical or mental pain."
But the 56-page memo on "Detainee Interrogation in the Global War on Terrorism" maintains that the president and his military commander cannot be restrained in this way.
"Congress lacks authority - to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during a war," the memo asserts. "Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe [the law] to avoid this difficulty and conclude that it does not apply to the president's detention and interrogation of enemy combatants."
The memo was dated March 6, 2003, two weeks before the start of the war in Iraq. In earlier memos, administration lawyers said the president could designate even American citizens arrested within the United States as "enemy combatants," and thus theoretically subject them to torture.
But according to several mainstream legal scholars, this turns the Constitution on its head. The 18th century document says Congress makes the laws, and the president has the duty to carry them out.
"He shall take care that the laws be faithfully executed," the Constitution says of the president.
Moreover, the Constitution grants Congress specific powers to set the rules in war and peace, including for captives.
"Congress shall have the power - to declare war and make rules concerning captures on land and water - to define offenses against the law of nations [and] to make rules for the government and regulation of the land and naval forces."
A broad range of legal experts, including specialists in military law, say they were taken aback by this bald assertion of presidential supremacy.
"It is an extraordinary claim. It is as broad an assertion of presidential authority as I have ever seen," said Michael Glennon, a war law expert at Tufts University. "This is a claim of unlimited executive power. There is no reason to read the commander-in-chief power as trumping the clear power of Congress."
University of Texas law professor Douglas Laycock added, "It can't be right. It is just wrong to say the president can do whatever he wants, even if it is against the law."
Veteran military lawyers also said they were surprised and dismayed by the memo.
"It's an argument I have never seen made before - that the commander in chief's war-fighting powers trump the restrictions in the Geneva Convention," said Grant Lattin, a former judge advocate for the Marines who practices military law in Virginia. "I am having a difficult time even following the logic, that somehow because this is a new type of war that these military commanders' authority has somehow grown larger than the restrictions that we have accepted in the Geneva Convention."
Retired Rear Adm. John Hutson, the former judge advocate general for the Navy, said the memo read as though the lawyers were trying to bend the law to benefit their client, rather than stating the law fairly and accurately.
"That is not the job of people advising the president or the attorney general or the secretary of Defense. They have to be right legally, and I think they have an obligation to be right morally. I think they failed on both counts," said Hutson, now dean of the Franklin Pierce Law Center in Concord, N.H.
"The argument proves too much," he added. "If the president's inherent authority as commander in chief trumps domestic and international law, where is the limit? If every sovereign can ignore the law, then no one is bound by it."
It is not clear who wrote the memo or what effect it had. This week, administration officials, including Atty. Gen John Ashcroft, insisted that U.S. officials did not condone or authorize the use of torture. They characterized the memo as a view presented by lawyers in the administration that was not put into practice.
In 2002, the Justice Department's Office of Legal Counsel took the lead in arguing for a broad view of presidential authority in the war on terrorism. The same office contributed to the Pentagon's "working group" memo.
The office was led by two conservative law professors, Jay S. Bybee and John C. Yoo. They wrote the key memos declaring the Geneva Convention did not apply to accused terrorists, the Taliban or other detainees who were held at the U.S. naval base at Guantanamo Bay, Cuba.
They also said the president had the power to arrest and hold in military custody American citizens who were deemed to be "enemy combatants." The administration cited this authority as the basis for holding Jose Padilla, an accused terrorist who was arrested at Chicago's O'Hare Airport.
The Supreme Court is considering Padilla's case and is expected to rule on it before the end of June.
Bybee and Yoo have left the government. Bush nominated Bybee as a judge on the U.S. 9th Circuit Court of Appeals in San Francisco, and March 14, 2003, he won confirmation by the Senate. Yoo, a former clerk to Supreme Court Justice Clarence Thomas, has returned to his position as a law professor at UC Berkeley.
The Pentagon's legal working group was chaired by the Defense Department's general counsel, William J. Haynes II. He too has been nominated to be an appellate judge, in the U.S. 4th Circuit in Richmond, Va.
In March, the Republican-controlled Senate Judiciary Committee narrowly approved his nomination, but he has not been brought up for a final vote in the Senate.
A year ago, Haynes told Sen. Patrick J. Leahy (D-Vt.) that he and the Pentagon opposed any use of torture.
"We can assure you that it is the policy of the United States to comply with all of its legal obligation in its treatment of detainees," he said in a letter citing the Geneva Convention and the anti-torture law. "The United States does not permit, tolerate or condone any such torture by its employees under any circumstances."
The letter, dated June 25, 2003, came three months after the secret memo argued that the president could employ the use of torture if he chose to do so.
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