2002 August 1

Infamous “Torture Memo” Drafted by Bush Administration


What has been labelled the infamous “Torture Memo” by the administration of President George W. Bush was officially titled “RE: Standards of Conduct for Interrogation under 18 U.S.C. %% 2340 – 2340A,” dated August 1, 2002. The memo is signed by Jay Bybee, of the Justice Department’s Office of Legal Counsel, but is generally believed to have been written by John Yoo, also of the OLC. It is a long legalistic and tendentious argument that beneath the surface legalism justifies torture and makes extraordinary and completely unjustified claims of presidential power.

The beginning section interprets the definition of torture as contained in the UN Convention Against Torture (often abbreviated CAT; the full title of which is the Convention Against Torture, and other Cruel, Inhumane or Degrading Treatment or Punishment), as it has been implemented by Sections 2340-2340A of Title 18 the U.S. criminal code by virtue of the U.S ratification of the CAT. Reduced to its essence, the memo defines torture as “Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” This represents an extremely narrow definition that many analysts have argued is not consistent with a reasonable understanding of the plain language of the CAT.

The second key argument in the memo is that when acting as Commander in Chief (see Article II, Section 2 of the Constitution), the president has complete discretion, which cannot be reviewed by either Congress or the federal courts. The memo makes the point in several places. At one point, it argues that “the President enjoys complete discretion in the exercise of the Commander in Chief authority” (p. 33). That statement is prefaced with the declaration, “As the Supreme Court has recognized . . . ..” Few legal scholars apart from John Yoo, however, would agree with that statement. Later, the memo declares that “Congress lacks the authority” to control or limit the president when he is acting as Commander in Chief. (It is important to note that in his 366 page treatise on presidential power in times of war, The Powers of War and Peace, John Yoo barely mentions the Supreme Court case of Youngstown Steel v. Sawyer, June 2, 1952, which is universally recognized as the basic decision regarding presidential power.)

In concluding sections, the memo argues that, even if a particular interrogation technique did cross the line into torture, it would be justified by both the “necessity defense,” and the nation’s right of “self-defense” in the face of foreign attacks.

In March 2004, Jack Goldsmith, the new head of the Office of Legal Counsel, withdrew the torture memo, finding it legally flawed. On September 6, 2006, in a speech justifying his administration’s tactics in the war on terrorism, President George W. Bush lied by claiming that the U.S. did not torture.

In December 2014, after a long fight with the CIA and Committee Republicans, the Senate Intelligence Committee released a 525 page redacted report on the CIA torture program:.

Read the Senate Torture Report: http://www.intelligence.senate.gov/study2014/sscistudy1.pdf

Read the infamous memo for yourselfhttp://www.justice.gov/olc/docs/memo-gonzales-aug2002.pdf

Learn more: Alfred W. McCoy, A Question of Torture (2006)

Learn more at Torturing Democracy (timeline, documents, documentary): http://www.torturingdemocracy.org/

Read other key documents: Karen Greenberg and Joshua Dratel, eds, The Torture Papers: The Road to Abu Ghraib (2005)

Read Goldsmith’s account: Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007)

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