A Guide to the Memos on Torture
By THE NEW YORK TIMES
27 June, 2004
The New York Times, Newsweek, The Washington Post and The Wall Street Journal have
disclosed memorandums that show a pattern in which Bush administration lawyers set about
devising arguments to avoid constraints against mistreatment and torture of detainees.
Administration officials responded by releasing hundreds of pages of previously classified
documents related to the development of a policy on detainees.
JANUARY A series of memorandums from the
Justice Department, many of them written by John C. Yoo, a University of
California law professor who was serving in the department, provided arguments to keep
United States officials from being charged with war crimes for the way prisoners were
detained and interrogated. The memorandums, principally one written on Jan. 9, provided
legal arguments to support administration officials' assertions that the Geneva
Conventions did not apply to detainees from the war in Afghanistan.
Yoo's Memo on
Avoiding Geneva Conventions (PDF document)
JAN. 25 Alberto R. Gonzales,
the White House counsel, in a memorandum to President Bush, said that the
Justice Department's advice in the Jan. 9 memorandum was sound and that Mr. Bush should
declare the Taliban and Al Qaeda outside the coverage of the Geneva Conventions. That
would keep American officials from being exposed to the federal War Crimes Act, a 1996 law
that carries the death penalty.
Memo to Bush (PDF document)
JAN. 26 In a memorandum to the White House,
Secretary of State Colin L. Powell said the advantages of applying the
Geneva Conventions far outweighed their rejection. He said that declaring the conventions
inapplicable would "reverse over a century of U.S. policy and practice in supporting
the Geneva Conventions and undermine the protections of the laws of war for our
troops." He also said it would "undermine public support among critical
to White House (PDF document)
FEB. 2 A memorandum from William H.
Taft IV, the State Department's legal adviser, to Mr. Gonzales warned that the
broad rejection of the Geneva Conventions posed several problems. "A decision that
the conventions do not apply to the conflict in Afghanistan in which our armed forces are
engaged deprives our troops there of any claim to the protection of the conventions in the
event they are captured." An attachment to this memorandum, written by a State
Department lawyer, showed that most of the administration's senior lawyers agreed that the
Geneva Conventions were inapplicable. The attachment noted that C.I.A. lawyers asked for
an explicit understanding that the administration's public pledge to abide by the spirit
of the conventions did not apply to its operatives.
Memo on Rejection of Geneva Conventions (PDF document)
FEB. 7 In a directive that set new rules for
handling prisoners captured in Afghanistan, President Bush broadly cited
the need for "new thinking in the law of war." He ordered that all people
detained as part of the fight against terrorism should be treated humanely even if the
United States considered them not to be protected by the Geneva Conventions, the White
House said. Document released by White House.
Directve on Treatment of Detainees (PDF document)
AUGUST A memorandum from Jay S. Bybee,
with the Office of Legal Counsel in the Justice Department, provided a rationale for using
torture to extract information from Qaeda operatives. It provided complex definitions of
torture that seemed devised to allow interrogators to evade being charged with that
Memo on Torture (PDF document)
Author of Memo on Torture to White House Counsel
Dec. 2 Memo from Defense Department detailing
the policy for interrogation techniques to be used for people seized in Afghanistan.
Document released by White House.
Memo on Afghanistan Detainees (PDF document)
MARCH A memorandum prepared by a Defense
Department legal task force drew on the January and August memorandums to declare that President
Bush was not bound by either an international treaty prohibiting torture or by a
federal anti-torture law because he had the authority as commander in chief to approve any
technique needed to protect the nation's security. The memorandum also said that executive
branch officials, including those in the military, could be immune from domestic and
international prohibitions against torture for a variety of reasons, including a belief by
interrogators that they were acting on orders from superiors "except where the
conduct goes so far as to be patently unlawful.'
APRIL A memorandum from Secretary of Defense Donald
H. Rumsfeld to Gen. James T. Hill outlined 24 permitted
interrogation techniques, 4 of which were considered stressful enough to require Mr.
Rumsfeld's explicit approval. Defense Department officials say it did not refer to the
legal analysis of the month before.
Memo on Interrogation Techniques (PDF document)
DEC. 24 A letter to the International Committee
of the Red Cross over the signature of Brig. Gen. Janis Karpinski was
prepared by military lawyers. The letter, a response to the Red Cross's concern about
conditions at Abu Ghraib, contended that isolating some inmates at the prison for
interrogation because of their significant intelligence value was a "military
necessity," and said prisoners held as security risks could legally be treated
differently from prisoners of war or ordinary criminals.
Some have been described in reports in The Times and elsewhere, but their exact
contents have not been disclosed. These include a memorandum that provided advice to
interrogators to shield them from liability from the Convention Against Torture, an
international treaty and the Anti-Torture Act, a federal law. This memorandum provided
what has been described as a script in which officials were advised that they could avoid
responsibility if they were able to plausibly contend that the prisoner was in the custody
of another government and that the United States officials were just getting the
information from the other country's interrogation. The memorandum advised that for this
to work, the United States officials must be able to contend that the prisoner was always
in the other country's custody and had not been transferred there. International law
prohibits the "rendition" of prisoners to countries if the possibility of
mistreatment can be anticipated.
Neil A. Lewis contributed to this report. Online Document Sources: Findlaw.com and
National Security Archive, George Washington University (gwu.edu)