[Affolfembonge]

Memo gave Pentagon exemption from criminal laws

Elana Schor in Washington
guardian.co.uk, Wednesday April 2 2008

The US justice department extended the sweeping wartime powers claimed by George Bush to military interrogators, giving them freedom from criminal laws when questioning al-Qaida suspects, in a 2003 legal memorandum released for the first time yesterday.

The brief, provided to the Pentagon days before the invasion of Iraq, allowed the slapping, poking, and shoving of detainees without legal consequences.

Maiming a detainee - defined as disabling or cutting out the nose, eye, ear, lip, tongue, or limb - was also deemed a defensible interrogation tactic if the military could prove it had no advance intention to maim.

The terrorist attacks of 2001 allowed the White House and the military to invoke a broad right to self-defence, the brief argued.

"The defendant could claim that he was fulfilling the executive branch's authority to protect the federal government and the nation from attack after the events of September 11, which triggered the nation's right to self-defence," read the brief, written by former Bush administration lawyer John Yoo.

While the memorandum was revoked nine months after it was sent, the Bush administration has built on its arguments to assert exemptions from US and international law during interrogations conducted at Guantanamo Bay and elsewhere overseas.

Often referring to the president as "the sovereign", Yoo gave Bush the legal right to override international laws "at his discretion".

"It is well established that the sovereign retains the discretion to treat unlawful combatants as it sees fit," Yoo wrote.

The 81-page brief was released by the American Civil Liberties Union, which has battled the administration in court to secure documents under US freedom of information laws.

A companion brief written in 2002 allowed CIA interrogators to use any brutal method that did not cause pain on the level of death or organ failure.

The brief released yesterday cited past legal rulings that said hooding of detainees, sleep or food deprivation, and forcibly prolonged postures such as the "frog crouch" did not amount to torture.

The military was also permitted to threaten detainees with death, so long as the threat was not imminent.

"Thus, a vague threat that someday the prisoner might be killed would not suffice" to violate a law, Yoo wrote.

However, the memo does rule out mock executions and Russian roulette as legitimate interrogation tactics.

The brief takes a notably narrow view of the Congress' power to influence American policy during wartime. The US judiciary is also described as prone to "generally defer to executive decisions concerning the conduct of hostilities".

A few senior members of Congress had seen the brief in its classified format and argued for its public release. Patrick Leahy, chairman of the Senate judiciary committee, said the brief "threatens our country's status as a beacon of human rights around the world."

Several US legal experts expressed alarm at the brief's sprawling vision of presidential authority.

"If the supreme court adopted John Yoo's theory of presidential dictatorship, it might send us spiraling down toward the end of our two centuries' old constitutional experiment with democracy," Jack Balkin, a law professor at Yale University, wrote on his blog.

Eugene Fidell, a military justice professor at Yale and American University, told the New York Times that the brief "is a monument to executive supremacy and the imperial presidency".

Part one of the Justice Department memo (pdf)

Part two of the Justice Department memo (pdf)