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Call It the Abu Ghraib Memo

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By Dan Froomkin
Special to washingtonpost.com
Wednesday, April 2, 2008; 1:54 PM

The Justice Department memo released yesterday is a key link in the chain of evidence connecting the monstrous abuse of detainees at the Abu Ghraib prison and elsewhere straight to the White House.

President Bush has described the torture and murder of prisoners by U.S. military personnel as the work of an aberrant few. But this 2003 memo opened the door to precisely the kinds of abuse so horrifically chronicled in the Abu Ghraib photographs.

And the memo's author -- John Yoo, then a deputy in the Justice Department's Office of Legal Counsel -- was a longtime ally and notoriously pliant scribe for the radical legal views of Vice President Cheney and his chief enforcer, David S. Addington.

Yoo's memo is a historic document. It is the ultimate expression of Cheney's belief that anything the president or his designates do -- no matter how illegal, barbaric or un-American -- is justifiable in the name of national self-defense.

It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.

The Memo

Here is the full text of the 81-page memo, parts one, two, three and four.

Among the key quotes: "If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

The Coverage

Dan Eggen and Josh White write in The Washington Post: "The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes. . . .

"Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department's use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

"Sent to the Pentagon's general counsel on March 14, 2003, . . . the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers. . . .

"Interrogators who harmed a prisoner would be protected by a 'national and international version of the right to self-defense,' Yoo wrote. He also articulated a definition of illegal conduct in interrogations -- that it must 'shock the conscience' -- that the Bush administration advocated for years.

"'Whether conduct is conscience-shocking turns in part on whether it is without any justification,' Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted. . . .


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© 2008 The Washington Post Company

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