|Memo Offered Justification for Use
By Dana Priest and R. Jeffrey Smith from The
Washington Post, 8 June 2004
In August 2002, the Justice Department advised the White House that torturing al Qaeda
terrorists in captivity abroad "may be justified," and that international laws
against torture "may be unconstitutional if applied to interrogations" conducted
in President Bush's war on terrorism, according to a newly obtained memo.
If a government employee were to torture a suspect in captivity, "he would be doing
so in order to prevent further attacks on the United States by the Al Qaeda terrorist
network," said the memo, from the Justice Department's office of legal counsel,
written in response to a CIA request for legal guidance. It added that arguments centering
on "necessity and self-defense could provide justifications that would eliminate any
criminal liability" later.
The memo seems to counter the pre-Sept. 11, 2001, assumption that U.S. government
personnel would never be permitted to torture captives. It was offered after the CIA began
detaining and interrogating suspected al Qaeda leaders in Afghanistan and elsewhere in the
wake of the attacks, according to government officials familiar with the document.
The legal reasoning in the 2002 memo, which covered treatment of al Qaeda detainees in CIA
custody, was later used in a March 2003 report by Pentagon lawyers assessing interrogation
rules governing the Defense Department's detention center at Guantanamo Bay, Cuba. At that
time, Defense Secretary Donald H. Rumsfeld had asked the lawyers to examine the
logistical, policy and legal issues associated with interrogation techniques.
Bush administration officials say flatly that, despite the discussion of legal issues in
the two memos, it has abided by international conventions barring torture, and that
detainees at Guantanamo and elsewhere have been treated humanely, except in the cases of
abuse at Abu Ghraib prison in Iraq for which seven military police soldiers have been
Still, the 2002 and 2003 memos reflect the Bush administration's desire to explore the
limits on how far it could legally go in aggressively interrogating foreigners suspected
of terrorism or of having information that could thwart future attacks.
In the 2002 memo, written for the CIA and addressed to White House Counsel Alberto R.
Gonzales, the Justice Department defined torture in a much narrower way, for example, than
does the U.S. Army, which has historically carried out most wartime interrogations.
In the Justice Department's view -- contained in a 50-page document signed by Assistant
Attorney General Jay S. Bybee and obtained by The Washington Post -- inflicting moderate
or fleeting pain does not necessarily constitute torture. Torture, the memo says,
"must be equivalent in intensity to the pain accompanying serious physical injury,
such as organ failure, impairment of bodily function, or even death."
By contrast, the Army's Field Manual 34-52, titled "Intelligence
Interrogations," sets more restrictive rules. For example, the Army prohibits pain
induced by chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal
positions for prolonged periods of time; and food deprivation. Under mental torture, the
Army prohibits mock executions, sleep deprivation and chemically induced psychosis.
Human rights groups expressed dismay at the Justice Department's legal reasoning
"It is by leaps and bounds the worst thing I've seen since this whole Abu Ghraib
scandal broke," said Tom Malinowski of Human Rights Watch. "It appears that what
they were contemplating was the commission of war crimes and looking for ways to avoid
legal accountability. The effect is to throw out years of military doctrine and standards
But a spokesman for the White House counsel's office said, "The president directed
the military to treat al Qaeda and Taliban humanely and consistent with the Geneva
Mark Corallo, the Justice Department's chief spokesman, said "the department does not
comment on specific legal advice it has provided confidentially within the executive
branch." But he added: "It is the policy of the United States to comply with all
U.S. laws in the treatment of detainees -- including the Constitution, federal statutes
and treaties." The CIA declined to comment.
The Justice Department's interpretation for the CIA sought to provide guidance on what
sorts of aggressive treatments might not fall within the legal definition of torture.
The 2002 memo, for example, included the interpretation that "it is difficult to take
a specific act out of context and conclude that the act in isolation would constitute
torture." The memo named seven techniques that courts have considered torture,
including severe beatings with truncheons and clubs, threats of imminent death, burning
with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a
prisoner to watch the torture of another person.
"While we cannot say with certainty that acts falling short of these seven would not
constitute torture," the memo advised, ". . . we believe that interrogation
techniques would have to be similar to these in their extreme nature and in the type of
harm caused to violate law."
"For purely mental pain or suffering to amount to torture," the memo said,
"it must result in significant psychological harm of significant duration, e.g.,
lasting for months or even years." Examples include the development of mental
disorders, drug-induced dementia, "post traumatic stress disorder which can last
months or even years, or even chronic depression."
Of mental torture, however, an interrogator could show he acted in good faith by
"taking such steps as surveying professional literature, consulting with experts or
reviewing evidence gained in past experience" to show he or she did not intend to
cause severe mental pain and that the conduct, therefore, "would not amount to the
acts prohibited by the statute."
In 2003, the Defense Department conducted its own review of the limits that govern
torture, in consultation with experts at the Justice Department and other agencies. The
aim of the March 6, 2003, review, conducted by a working group that included
representatives of the military services, the Joint Chiefs of Staff and the intelligence
community, was to provide a legal basis for what the group's report called
Much of the reasoning in the group's report and in the Justice Department's 2002 memo
overlap. The documents, which address treatment of al Qaeda and Taliban detainees, were
not written to apply to detainees held in Iraq.
In a draft of the working group's report, for example, Pentagon lawyers approvingly cited
the Justice Department's 2002 position that domestic and international laws prohibiting
torture could be trumped by the president's wartime authority and any directives he
At the time, the Justice Department's legal analysis, however, shocked some of the
military lawyers who were involved in crafting the new guidelines, said senior defense
officials and military lawyers.
"Every flag JAG lodged complaints," said one senior Pentagon official involved
in the process, referring to the judge advocate generals who are military lawyers of each
"It's really unprecedented. For almost 30 years we've taught the Geneva Convention
one way," said a senior military attorney. "Once you start telling people it's
okay to break the law, there's no telling where they might stop."
A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in the world.
But the Pentagon group's report, prepared under the supervision of General Counsel William
J. Haynes II, said that "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
The Pentagon group's report, divulged yesterday by the Wall Street Journal and obtained by
The Post, said further that the 1994 law barring torture "does not apply to the
conduct of U.S. personnel" at Guantanamo Bay.
It also said the anti-torture law did apply to U.S. military interrogations that occurred
outside U.S. "maritime and territorial jurisdiction," such as in Iraq or
Afghanistan. But it said both Congress and the Justice Department would have difficulty
enforcing the law if U.S. military personnel could be shown to be acting as a result of
The report then parsed at length the definition of torture under domestic and
international law, with an eye toward guiding military personnel about legal defenses.
The Pentagon report uses language very similar to that in the 2002 Justice Department memo
written in response to the CIA's request: "If a government defendant were to harm an
enemy combatant during an interrogation in a manner that might arguably violate criminal
prohibition, he would be doing so in order to prevent further attacks on the United States
by the al Qaeda terrorist network," the draft states. "In that case, DOJ
[Department of Justice] believes that he could argue that the executive branch's
constitutional authority to protect the nation from attack justified his actions."
The draft goes on to assert that a soldier's claim that he was following "superior
orders" would be available for those engaged in "exceptional interrogations
except where the conduct goes so far as to be patently unlawful." It asserts, as does
the Justice view expressed for the CIA, that the mere infliction of pain and suffering is
not unlawful; the pain or suffering must be severe.
A Defense Department spokesman said last night that the March 2003 memo represented
"a scholarly effort to define the perimeters of the law" but added: "What
is legal and what is put into practice is a different story." Pentagon officials said
the group examined at least 35 interrogation techniques, and Rumsfeld later approved using
24 of them in a classified directive on April 16, 2003, that governed all activities at
Guantanamo Bay. The Pentagon has refused to make public the 24 interrogation procedures.
Staff writer Josh White contributed to this report.