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Call It the Abu Ghraib Memo

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. . . .

"Yoo's 2003 memo arrived amid strong Pentagon debate about which interrogation techniques should be allowed and which might lead to legal action in domestic and international courts.

"After a rebellion by military lawyers, then-Defense Secretary Donald H. Rumsfeld in December 2002 suspended a list of aggressive techniques he had approved. . . .

"Largely because of Yoo's memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics. The top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo's March memo and did not know about the group's final report for more than a year, officials said.

"Thomas J. Romig, who was then the Army's judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found 'downright offensive.'"

Mark Mazzetti writes in the New York Times: "The thrust of Mr. Yoo's brief has long been known, but its specific contents were revealed on Tuesday after government lawyers turned it over to the American Civil Liberties Union, which has sought hundreds of documents from the Bush administration under the Freedom of Information Act.

"Some legal scholars said Tuesday that they were amazed at the scope of the memorandum.

"'This is a monument to executive supremacy and the imperial presidency,' said Eugene R. Fidell, who teaches military justice at Yale Law School and the Washington College of Law at American University. 'It's also a road map for the Pentagon for fending off any prosecutions.' . . .

"Amrit Singh, a lawyer for the American Civil Liberties Union, said that the Yoo memorandum seemed to give military interrogators 'carte blanche' to use any techniques and suggested that it was the legal underpinning for abuses that occurred months later at the Abu Ghraib prison in Iraq."

Lara Jakes Jordan writes for the Associated Press: "The 81-page legal analysis largely centers on whether interrogators can be held responsible for torture if torture is not the intent of the questioning. And it defines torture as the intended sum of a variety of acts, which could include acid scalding, severe mental pain and suffering, threat of imminent death and physical pain resulting in impaired body functions, organ failure or death.

"The 'definition of torture must be read as a sum of these component parts,' the memo said.

"The memo also includes past legal defenses of interrogations that Yoo wrote are not considered torture, such as sleep deprivation, hooding detainees and 'frog crouching,' which forces prisoners to crouch while standing on the tips of their toes....

"The memo concludes that foreign enemy combatants held overseas do not have defendants' rights or protections from cruel and unusual punishment that U.S. citizens have under the Constitution. It also says that Congress 'cannot interfere with the president's exercise of his authority as commander in chief to control the conduct of operations during a war.'

"Senate Judiciary Committee Chairman Patrick Leahy said the memo 'reflects the expansive view of executive power that has been the hallmark of this administration.' He called for its release four months ago.

"'It is no wonder that this memo . . . could not withstand scrutiny and had to be withdrawn,' said Leahy, D-Vt. 'This memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country's status as a beacon of human rights around the world.'"

Evan Perez writes in the Wall Street Journal (subscription required) with the official responses: "Peter Carr, a Justice Department spokesman, says the department's current legal view 'does not conclude that the President can supersede statutes regulating detainee treatment.' . . .

"Pentagon spokesman Jeffrey Gordon said, 'Our policy is, and always has been, to treat detainees humanely.'"

The Context

Marty Lederman, a blogger and lawyer formerly with the Office of Legal Counsel who now teaches law at Georgetown University, calls this "The Torture Memo to Top All Torture Memos. . . .

"It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004. . . .

"[T]he March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to [Maj. Gen.] Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004."

Miller is a central figure in the abuse scandal. As Josh White reported in The Post in July 2005, when Miller commanded the detention facility at Guantanamo Bay, he oversaw the use of several of the tactics later used under his watch on detainees at Abu Ghraib.

Or, as Lederman blogged in 2006: "Miller -- having now been informed that the criminal law is a mere trifle that cannot stand in the way of the Commander in Chief's wishes -- is then sent to Iraq to 'GTMOize' the interrogation operations there and to obtain more information from Iraqi detainees. . . . And what do you know?: The vast majority of the criminal abuse in Iraq occurs between Miller's arrival and December 2003. (In December, new OLC head Jack Goldsmith informed the Pentagon that it should no longer rely on John Yoo's legal analysis.)"

The suggestion that the White House bears direct responsibility for violations of human dignity is not new. The first administration insider to suggest that -- Larry Wilkerson -- did so almost two and half years ago.

As I wrote in a Nov. 4, 2005, column, Wilkerson -- the former chief of staff to secretary of state Colin Powell -- told NPR that he had uncovered a "visible audit trail" tracing the practice of prisoner abuse by U.S. soldiers to Vice President Cheney's office.

Said Wilkerson: "What happened was that the secretary of Defense, under the cover of the vice president's office, began to create an environment -- and this started from the very beginning when David Addington, the vice president's lawyer, was a staunch advocate of allowing the president in his capacity as commander in chief to deviate from the Geneva Conventions... they began to authorize procedures within the armed forces that led to, in my view, what we've seen

"[I]t was clear to me that there was a visible audit trail from the vice president's office through the secretary of Defense down to the commanders in the field that in carefully couched terms -- I'll give you that -- that to a soldier in the field meant two things: We're not getting enough good intelligence and you need to get that evidence, and, oh, by the way, here's some ways you probably can get it."

The Addington Factor

As I wrote in my Sept. 5, 2007, column, Addington is the man at the center of the Bush White House's most extreme overreaches -- its assertions of unfettered executive power in wartime, its backing of brutal treatment of detainees, its bulldozing of legal limits on government eavesdropping.

And John Yoo was perhaps Addington's most consistent and reliable tool.

The New Yorker's Jane Mayer described Addington's tactics in July 2005. And in her May 2006 profile of Addington, Chitra Ragavan wrote in U.S News about how Yoo was one of the "small, trusted circle" of lawyers who Addington counted on to advance his radical legal view.

Iraq Watch

Sudarsan Raghavan writes in The Washington Post: "Attacks against U.S. troops and Iraqi security forces soared across Baghdad in the last week of March to the highest levels since the deployment of additional U.S. troops here reached full strength last June, according to U.S. military data and analysis.

"The sharp spike in attacks, in response to an ill-prepared Iraqi government offensive in the southern city of Basra last week, underscores the fragility of the U.S. military's hard-won security gains in Iraq and how easily those gains can be erased....

"The figures and analysis offer more evidence of how swiftly U.S. forces were drawn into a power struggle unfolding between Sadr and rival Shiite groups that lead Iraq's government, mainly Prime Minister Nouri al-Maliki's Dawa party and the Islamic Supreme Council of Iraq, led by Abdul Aziz-Hakim. . . .

"U.S. forces bore the brunt of those attacks last week, suggesting that they were taking the lead combat role in many areas or were perceived by Mahdi Army fighters to be taking the lead. The data square with on-the-ground reports that American soldiers were involved in battles and were being targeted with roadside bombs, rocket-propelled grenades and other weapons in many Shiite enclaves of Baghdad."

Aamer Madhani blogs for Tribune: "Last week's inconclusive battle for Basra is raising new questions about the viability of U.S. military strategy in Iraq as Gen. David Petraeus and Ambassador Ryan Crocker head to Capitol Hill next week to give Congress their assessment of the U.S. troop surge.

"President Bush billed the struggle between Shiite militiamen and the Iraqi army as a 'defining moment' for Iraq. But [that] the fighting left hundreds dead from Basra to Baghdad without causing any serious damage to the Mahdi Army militia demonstrates how ineffectual the Iraqi army is five years into the war and underscores that Iraqi politics remains more complicated than ever, military experts said. . . .

"The point of the current troop buildup, as laid out by Bush when he announced it in early 2007, was to give the Iraqi government the opportunity to build its security apparatus and to provide Iraqi officials with the breathing space to reach political accommodation among various factions.

"From a tactical standpoint, the escalation has had some success; the overall violence has gone down dramatically.

"But the Iraqis have made few gains on the political front since nearly 30,000 additional U.S. troops were sent to Iraq."

Warren P. Strobel and Nancy A. Youssef write for McClatchy Newspapers: "'There is no empirical evidence that the Iraqi forces can stand up' on their own, a senior U.S. military official in Washington said, reflecting the frustration of some at the Pentagon. He and other military officials requested anonymity because they weren't authorized to speak for the record.

"Having Iraqi forces take a leadership role in combating militias and Islamic extremists was crucial to U.S. hopes of withdrawing more American forces in Iraq and reducing the severe strains the Iraq war has put on the Army and Marine Corps.

"The failure of Iraqi forces to defeat rogue fighters in Basra has some in the military fearing they can no longer predict when it might be possible to reduce the number of troops to pre-surge levels.

"'It's more complicated now,' said one officer in Iraq whose role has been critical to American planning there.

"Questions remain about how much Bush and his top aides knew in advance about the offensive and whether they encouraged Maliki to confront radical Shiite cleric Muqtada al Sadr.

"A senior U.S. lawmaker and four military officials said Tuesday that the Americans were aware in general terms of the coming offensive, but were surprised by the timing and by the Iraqis' almost immediate need for U.S. air support and other help."

Bush and NATO

Peter Baker writes for The Washington Post: "President Bush set the stage Wednesday for a contentious three-day NATO summit, where disputes over missile defense, the war in Afghanistan and expansion into former Soviet territory likely will test the unity of the 26-member alliance.

"As leaders converged on this Balkan capital, two decades after the ouster and execution of its Communist dictator opened doors to the West, Bush called on the Atlantic alliance to do more to transform itself for a new era of more disparate threats. But his calls for more NATO troops for Afghanistan and membership roadmaps for Ukraine and Georgia provoked deep skepticism and face an uncertain outcome. . . .

"Bush has signaled in the past two days that he is not looking for a face-saving compromise and would rather press the confrontation even if it ruptures the summit. Before arriving here, he stopped in Ukraine for a high-profile display of support, declaring that 'Russia will not have a veto over what happens in Bucharest' and dismissing any suggestions of a deal with Moscow. 'There's no tradeoffs, period.'"

Matt Spetalnick and Susan Cornwell write for Reuters: "Bush's keynote speech at a pre-summit conference in Bucharest read like a laundry list of his foreign policy woes as he struggles to stay relevant abroad in the twilight of his second and final term.

"But with Bush even more unpopular overseas than at home, he could have a hard time swaying world leaders as they look to whomever will succeed him as president in January 2009. . . .

"European critics accuse Bush of being distracted by the Iraq war, which has helped cement a go-it-alone image in world affairs. They say he has not paid enough attention to what they see as a more important fight in Afghanistan."

The Los Angeles Times editorial board writes: "It isn't often that we take Vladimir V. Putin's side on issues of international governance, but the bellicose Russian president is right about the matter expected to dominate this week's NATO summit: Ukraine and Georgia don't belong in the alliance. At least not yet."

Premature Cutoff

Terence Hunt writes for the Associated Press that Bush tried to end a news conference today before his host, Romanian President Traian Basescu, was ready.

"'Thank you. Thank you very much,' Bush told reporters, a code phrase that means, 'That's it, folks.'

"Typically, as a matter of courtesy and protocol, the host decides when such an event is over. But Bush has been known to ignore that practice. . . .

"He strolled over to Basescu and asked if he was ready to take a walk by the water.

"'Just a moment,' Basescu interjected politely.

"Oh.

"'He's not through,' Bush observed. Bush headed back to his podium, on the beach of the Black Sea at Basescu's picturesque retreat.

"The Romanian president took a few moments to comment about an important issue in his country, the availability of visas for people to visit the U.S.

"Then -- finished for real this time -- the two leaders took their stroll by the water."

Warrantless Wiretapping Watch

Siobhan Gorman writes in the Wall Street Journal (subscription required): "The White House, seeking to break a months-long standoff, has signaled to Democratic lawmakers it is open to negotiation over a proposal to expand government spy powers, according to officials familiar with the conversations."

House Democrats have broken with their Senate colleagues in rejecting immunity for companies, and demanding tougher judicial oversight of any eavesdropping effort. Gorman writes: "People familiar with the matter said the White House has floated ideas to find common ground but hasn't offered a formal compromise proposal. Officials in both parties said judicial oversight might be an easier area for the administration to make concessions.

"The White House's more conciliatory posture reflects a recognition that the Bush administration's leverage on national-security matters has slipped since this past summer, a top Republican congressional aide said. 'There's a recognition that if they're actually going to get a product they can support, there's going to have to be some new level of engagement,' the aide said.

"For months, the White House has tried to replicate its performance last August, when Republicans outmaneuvered Democrats and forced passage of a temporary expansion of domestic spy powers. Republicans then tried to use the temporary law's expiration date to force Democrats to accept a permanent expansion. But since the law expired Feb. 16, House Democrats have stood firm."

Intel Watch

Mark Mazzetti writes in the New York Times: "The Pentagon is expected to shut a controversial intelligence office that has drawn fire from lawmakers and civil liberties groups who charge that it was part of an effort by the Defense Department to expand into domestic spying.

"The move, government officials say, is part of a broad effort under Defense Secretary Robert M. Gates to review, overhaul and, in some cases, dismantle an intelligence architecture built by his predecessor, Donald H. Rumsfeld. . . .

"[T]he office, whose size and budget is classified, came under fierce criticism in 2005 after it was disclosed that it was managing a database that included information about antiwar protests planned at churches, schools and Quaker meeting halls."

Meanwhile, however, Robert O'Harrow Jr. writes in The Washington Post: "Intelligence centers run by states across the country have access to personal information about millions of Americans, including unlisted cellphone numbers, insurance claims, driver's license photographs and credit reports, according to a document obtained by The Washington Post....

"Dozens of the organizations known as fusion centers were created after the Sept. 11, 2001, terrorist attacks to identify potential threats and improve the way information is shared. The centers use law enforcement analysts and sophisticated computer systems to compile, or fuse, disparate tips and clues and pass along the refined information to other agencies. They are expected to play important roles in national information-sharing networks that link local, state and federal authorities and enable them to automatically sift their storehouses of records for patterns and clues. . . .

"Government watchdogs, along with some police and intelligence officials, said they worry that the fusion centers do not have enough oversight and are not open enough with the public, in part because they operate under various state rules."

Bush and Climate Change

The Washington Post editorial board writes: "The Bush administration never had any intention of doing what the Supreme Court commanded it to do a year ago today: regulate greenhouse gas emissions. We infer this because, even though President Bush ordered his agencies last May to work together to meet the court's directive, and even though the Environmental Protection Agency delivered to the White House last December its finding that those pollutants endanger public welfare, a prerequisite for regulation, EPA Administrator Stephen L. Johnson announced last week a plan to seek public input starting in the spring on how best to limit the emissions. Translation: punt to the next administration. This giant step backward is the starkest example yet of the chasm between the words and deeds of Mr. Bush on climate change."

Cheney Watch

Daniel Heim writes in Roll Call about former Rhode Island Republican senator Lincoln Chafee's new book: "The former Senator describes a December 2000 meeting of Republican moderates with Vice President-elect Cheney. Chafee listened as Cheney swore off the moderate course he and Bush had just finished championing in their campaign.

"Hearing Cheney say 'the campaign was over and that our actions in office would not be dictated by what had to be said in the campaign,' Chafee writes, was 'the most demoralizing moment of my seven-year tenure in the Senate.'"

Cartoon Watch

David Horsey on Bush's cowboy economics; Dwane Powell, Mike Luckovich and John Sherffius on the defining moment in Iraq.

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