2003 memo OK’d harsh interrogation

ASSOCIATED PRESS

The Pentagon yesterday made public a now-defunct legal memo that approved the use of harsh interrogation techniques against terrorist suspects, saying that President Bush’s wartime authority trumps any international ban on torture.

The Justice Department memo, dated March 14, 2003, outlined legal justification for military interrogators to use harsh tactics against al Qaeda and Taliban detainees overseas, so long as they did not specifically intend to torture their captives.

Even so, the memo noted, the president’s wartime power as commander in chief would not be limited by the U.N. treaties against torture.

“Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion,” said the memo, written by John Yoo, who was deputy assistant attorney general for the Office of Legal Counsel.

The memo also offered a defense in case any interrogator was charged with violating U.S. or international laws.

“Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability,” it concluded.

The memo was rescinded in December 2003, nine months after Mr. Yoo sent it to the Pentagon’s top attorney, William J. Haynes II. Its release yesterday marked the first time its contents in full have been made public.

Mr. Haynes, the Defense Department’s longest-serving general counsel, resigned in late February to return to the private sector. He has been criticized for his role in crafting Bush administration policies for detaining and trying terrorist suspects that some argue led to prisoner abuses at the detention center in Guantanamo Bay, Cuba.

Mr. Yoo’s memo became part of a debate among the Pentagon’s civilian and military leaders about what interrogation tactics to allow at overseas facilities and whether U.S. troops might face legal problems domestically or in international courts.

Also of concern was whether techniques used by U.S. interrogators might be used someday as justification for harsh treatment of Americans captured by opposing forces.

The Justice Department has opened an internal investigation into whether its top officials improperly authorized or reviewed the CIA’s use of waterboarding, which simulates drowning, when interrogating terror suspects. It was not clear whether the Yoo memo, which focuses only on military interrogators, will be part of that inquiry.

The declassified memo was released as part of an American Civil Liberties Union (ACLU) lawsuit to force the Bush administration to turn over documents about the government’s war on terrorism. The document also was submitted to lawmakers.