Counterterrorism, Laws and the Constitution

Sunday, April 6, 2008

Oct. 23, 2001 An Office of Legal Counsel memo titled "Re Authority for Use of Military Force to Combat Terrorist Activities Within the United States" states that domestic military operations involving terrorism are not regulated by the Constitution's Fourth Amendment, which bars unreasonable searches and seizures on U.S. soil.

Jan. 25, 2002 An Office of Legal Counsel memo concludes that the War Crimes Act and the Geneva Conventions do not apply to the treatment and interrogation of al-Qaeda prisoners.

Aug. 1, 2002 An Office of Legal Counsel memo narrowly defines what constitutes illegal torture, saying it must "be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

March 14, 2003 An Office of Legal Counsel memo states that federal laws prohibiting assault, maiming and other crimes do not apply to military interrogators of al-Qaeda detainees. It also says that if an interrogator harmed detainees, he "could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

April 16, 2003 The Pentagon formally lists 24 interrogation methods that can be used at Guantanamo Bay, Cuba, including isolation and what it calls "fear up harsh," which means "significantly increasing the fear level in a detainee."

December 2003 Jack Goldsmith, the new chief of the Office of Legal Counsel, decides that both the August 2002 and the March 2003 opinions must be rescinded. But he states that the Defense Department can still rely on the 24 approved interrogation techniques.

April 28, 2004 The Abu Ghraib prison scandal breaks.

June 14, 2004 Goldsmith tells Attorney General John D. Ashcroft that the August 2002 OLC memo on interrogation techniques needs to be withdrawn.

December 2004 A new Office of Legal Counsel memo concludes that torture is "abhorrent," but it adopts a legal definition similar to the one spelled out in the August 2002 OLC memo.

-- Julie Tate

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