Making Torture Legal


Reading through the memoranda written by Bush administration lawyers on how prisoners of the “war on terror” can be treated is a strange experience. The memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison. Avoiding prosecution is literally a theme of the memoranda. Americans who put physical pressure on captives can escape punishment if they can show that they did not have an “intent” to cause “severe physical or mental pain or suffering.” And “a defendant could negate a showing of specific intent…by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute.”

These quotations are from a draft report to Secretary of Defense Donald Rumsfeld by an ad hoc group of lawyers he chose, mostly political appointees in the Defense and other departments, to advise him on interrogation techniques for prisoners at Guantánamo Bay. The report is dated March 6, 2003; on the title page it says, “Classified by: Secretary Rumsfeld.”

Another theme in the memoranda, an even more deeply disturbing one, is that the President can order the torture of prisoners even though it is forbidden by a federal statute and by the international Convention Against Torture, to which the United States is a party.

The idea that presidential power overrides treaties and congressional laws appeared soon after the terrorist attacks of September 11, 2001. John Yoo, a professor at the University of California in Berkeley, was then a deputy assistant attorney general. He wrote several memos in late 2001 and then, in collaboration with Robert J. Delahunty, another Justice Department lawyer, an important paper dated January 9, 2002. It was addressed to the Defense Department’s general counsel, William J. Haynes II. “Restricting the President’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious,” the memo said.

In August 2002 the Justice Department prepared a further memorandum for the White House. The author was Assistant Attorney General Jay S. Bybee, head of the department’s Office of Legal Counsel. The fifty-page memorandum* embraced the constitutional argument. In a war like the present one, it said, “the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply [the criminal law against torture] in a manner that interferes with the President’s direction of such core matter as the detention and interrogation of enemy combatants thus would be unconstitutional.”

The Defense Department memorandum of March 2003 incorporated the ideas and much of the language in the Bybee memo. It expressed the idea of impervious presidential power in sweeping terms:

In order to respect the President’s inherent constitutional authority to manage a military campaign,… (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority…. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop…

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