Justice Releases Interrogation Memo

Justice Dept. Official in 2003 Said President's Wartime Authority Trumped Many Statutes

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.

Washington Post staff writer Dan Eggen was online Wednesday, April 2, at 2 p.m. ET to discuss the release of the 81-page memo which was declassified and released publicly yesterday.

A transcript follows.

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Dan Eggen: Good afternoon everyone. The belated release of John Yoo's 2003 memo on overseas interrogations is getting a lot of buzz, especially in legal circles. The arguments made in the 81-page memo are sweeping and far-reaching. Among other things, it asserted 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. It also seems to allow a broad range of physical contact with prisoners and even thet use of mind-altering drugs as long as they are not "extreme."

There seems to be general agreement, including among conservatives, that Yoo's reasoning was overbroad and incorrect in many respects. (The memo was withdrawn nine months after it was written by another group of Republican-appointed lawyers at Justice.) Does anyone disagree? Are some elements of Yoo's arguments solid?

I'm happy to try to answer any questions, so let's start!

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Washington, D.C.: I understand the memo was from 2003. Is this still the the policy now?

Dan Eggen: No, the memo was withdrawn in late December 2003 by Jack Goldsmith, who began as head of the Office of Legal Counsel in October of that year and had begun reviewing a whole host of legal opinions concerning surveillance, interrogation and the like that appeared to be problematic. John Yoo, who had authored the memo released yestereday, was a deputy in the OLC office earlier in 2003 but was passed over to be appointed its head.

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Bala Cynwyd, Pa.: What legal theory did John Yoo invoke in his seminal "the Commander in Chief is not bound by any laws and therefore torture is okay if he says so" memo? It would seem that all the framers of the Constitution wanted was a unified military command when they established POTUS as the C-in-C of the Army and Navy during war, not an absolute ruler unbound by laws. What am I missing?

Dan Eggen: What an excellent and, I must confess, difficult question. The answer is difficult because Yoo made many arguments, all of which appeared aimed at protecting or at least limiting the liability of interrogators who might be pushing the envelope with their tactics.

One useful way to examine his approach is to take the issue of federal criminal law. In the brief, he argued that "federal criminal laws of general applicability do not apply to properly-authorized interrogations of enemy combatants." He also discusses at length how many such laws, like assault etc., may not apply to many interrogation tactics anyway. But Yoo also essentially argues that the president's commander-in-chief powers, as encapsulated in Article II of the U.S. Constitution, trumps all of this anyway--that President Bush was acting in the national defense, and therefore (almost) anything would go.
On page 6 Yoo writes: "One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members of the enemy...Recognizing this authority, Congress has never attempted to restrict or interfere with the President's authority on this score."
Most constitutional scholars view this as a vast overstatement (and oversimplification) of executive power, and point to, among other things, a subsequent Supreme Court ruling in the Hamdan case.

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washingtonpost.com: Hamden v. Rumsfeld: High Court Rejects Detainee Tribunals (Post, June 30, 2006)

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Seattle, Justice: How long a jail term is John Woo likely to serve for his part in drafting the unconstitutional and illegal memo, and do you anticipate both the president and vice-president will be remanded to the Hague, or will bounties have to be issued for their arrest and subsequent trial for War Crimes?

Dan Eggen: There's no indication of any criminal investigation, proceedings, etc., against John Yoo, though I know it is a popular sentiment in the blogosphere.
However, Yoo does appear to face potential legal jeopardy in two areas:
1) Lawyers for former enemy combatant Jose Padilla have filed a civil lawsuit against Yoo, arguing that his legal advice led to abuse of their clieint.
2) The Justice Department's Office of Professional Responsibility, which is an internal watchdog of sorts that polices attorney conduct, is conducting an investigation of the role that Justice Department attorneys played in authorizing the use of waterboarding by the CIA. It's unclear how directly Yoo's role as a top Justice lawyer might fit into that probe however.
Yoo, who is now a law professor at the University of California at Berkeley, strongly defended the memo in an e-mail response to The Post late yesterday and said his advice to President Bush was "near boilerplate."

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washingtonpost.com: Memo: Laws Didn't Apply to Interrogators (Post, April 2)

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Fairfax, Va.: What has it taken five years for the public to see the memo? What steps were available to the media to obtain the memo earlier?

Dan Eggen: There were no steps for the media to obtain it earlier except to get it leaked. It was, until yesterday, a classified document, and anyone releasing it could have been subject to criminal sanctions.

The memo was in the hands of some Democrats on Capitol Hill since last year, but they were barred from releasing it in classified form. As part of a lawsuit brought by the ACLU, a federal judge recently ordered a declassification review of the memo, apparently leading to yesterday's release.

As an aside, many outside critics argue there was little reason that the opinion should have been classified since it deals only with legal theories and boundaries, rather than disclosing actual interrogation tactics and that sort of thing. Lawmakers and many otheres are still attempting to get access to other interrogation-related memos, including a set from 2005 that endorsed waterboarding and other harsh tactics at the CIA.

In 2004, The Post obtained and published another 2002 memo written by Yoo (but signed by another official)that is often referred to as "the torture memo," because it narrowly defined conduct that could be considered illegal torture. (Many of the same arguments appear again in the newly released memo.) Both the "torture memo" and the new Yoo memo were withdrawn and disowned by the Justice Department later on.

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Munich, Germany: Regarding mind-altering drugs, the term "profound disruption of the senses or personality" is a fairly ambiguous description. Was there any mention of which drugs were allowed and which weren't?

Dan Eggen: There was little mention, if any, of specific drugs in the memo, if my memory is right. The whole drug discussion is rather bizarre, and obviously raises very troubling possibilities. U.S. officials have vehemently denied allegations from some detainees and outside human-rights advocates that it used drugs as part of interrogations (as opposed to administering to health concerns etc.).

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Kingston, Pa.: I am not a lawyer, and I don't know how legal advice in the executive branch works, but I'm trying to fathom the reason for basing apparently so much of the war policy on the Yoo memo. Because the Yoo memo makes many broad statements that, in daylight and hindsight, seem very flimsy, is this a case of Bush-Cheney-Rumsfeld designing a legal argument to support their war cause? Will we see any similar analysis of the PATRIOT Act that will reveal further weak legal assertions?

Dan Eggen: Well, the Patriot Act is a public law and you or I can read it, dissect it and analyze it all we want. The point with this memo--and with so many others still locked in the bowels of the Justice Department--is that it set legal policy in SECRET, and was hidden even from the top lawyers of the military services that it was aimed at. During this time period in the Bush administration, much of this legal policymaking occurred in a bubble that kept out external criticism, and also prevented most of the rest of the world from even knowing what was going on.

Yoo was also a close ally of other hardliners elsewhere in the administration, including David Addington, who is now VP Cheney's chief of staff. According to our sources, he also frequently worked on these issues without input from then-AG Ashcroft or his inner circle.

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Chicago Ill.: Bala Cynwyd's question really gets to the heart of things here -- the Yoo memo pretty much obliterates American political theory. Our limited federal republic, premised on the Constitution as the supreme law of the land, has no room for the national security exception to the law that the Yoo memo envisions. President Bush is either bound by the law or he isn't -- it's irrelevant how well-intentioned he might be when he creates exceptions for himself to the rule of law. He can't do it.

Dan Eggen: This is the crux of most of the critiques of Yoo's legal claims.

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Sewickley, Pa.: Thank you for your reporting on this issue. At the time Mr. Yoo issued his guidance on torture, my husband was being deployed to Iraq secure in the knowledge that the United States Army follows the law and that other countries are expected to do the same. An officer with twenty years in an army he loved, he would like to stay in the military but sadly will be retiring this year. Will the U.S. ever be able to convince the world we don't torture?

Dan Eggen: Whatever one's views are on the issue of what constitutes torture or cruel treatment, I don't think there's much doubt that the nation's credibility is at a low ebb on this issue. Partly this is because so much of what did occur continues to be wrapped in secrecy or obfuscation. The Bush administration also has further undermined its case by constantly--and secretly--changing the definition of what torture is and by ignoring the advice of military experts and others who warned against taking the path it did.

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San Jose, Calif.: Given the shaky and perhaps illegal grounds used to justify some of this administration's actions, do you think if a Democrat is elected president in November that he/she will order the Justice Department to declassify other memos from the OLC, commence a criminal investigation, and open the door to prosecuting members of the Bush administration, up to and including the president?

Dan Eggen: I think the first part of your question is possible--that more memos could come out if a Democrat wins in November. I would give the second part of your question a chance of zero, not only for difficult legal reasons but for the more obvious political ones.

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Fairfax, Va.: In reading the comments posted on your story there seem to be some who believe that this is bias-type story and one poster wrote, "I guess you bleeding heart Liberals would rather give Al-Qaeda cookies and milk." There is division on what to do with Guantanamo and what to do about the prisoners. Is this, in fact, a political issue or more of an humanitarian concern that has been taken over by politics?

Dan Eggen: There are clearly many people out there who feel the Bush administration did the right thing in trying to push the limits on interrogations, and who accept the government's claims that the treatment--such as the CIA's use of "waterboarding" on three detainees--was worth the information gained.

But one interesting thing to keep in mind here is that this memo and others written during the early Bush years at OLC were not revoked by a bunch of wild-eyed bleeding-heart liberals at the ACLU. A group of conservative, Republican prosecutors at Justice essentially staged a revolt in 03/04 raising serious objections to several aspects of surveillance and interrogation policy that they felt had gone too far and was perhaps illegal.

They were joined, on the interrogation front, by the judge advocate generals in every branch of the military service, who also were horrified at what they saw. Sens. Lindsey Graham and John McCain were among the leading GOP critics on some of these issues (though McCain, now running for president, has angered human-rights advocates more recently for refusing to go along with limits on CIA interrogations).

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Stuttgart, Germany: If being designated an enemy combatant means the loss of even the most basic of rights, shouldn't an independent body determine who qualifies for such a designation? If not, what is to prevent anyone from being designated an enemy combatant?

While the Bush administration may believe that it is acting in the country's best interest, this seems an awfully dangerous precedence to set. In fact, it seems especially dangerous to use a potentially unending war as the basis for an overarching expansion of executive authority. This should sit easy with none of us.

Dan Eggen: The Bush administration's position is that the president has the power to declare anyone an enemy combatant. There are procedures set in place for doing so, but essentially it's voluntary. The Supreme Court upheld a president's right to designate such combatants in 1942, though there is still a great deal of disagreement about the parameters.

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Kansas City, Mo.: As I look at the memo, the declassification was done by the Acting General Counsel of the Defense Department, yet the memo itself was written by the Justice Department. Since when does the DOD declassify materials written by other agencies?

Dan Eggen: The memo was written for DOD, and therefore it was theirs, essentially. They also would be the agency to determine whether there were classified secrets that should not be disclosed. If the memo were written to the CIA, presumably they may have played a similar role.

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Northwest D.C.: What relevance will this memo, in the context of other documents relating to the legality of torture, have to the low-level soldiers charged with criminal abuse in the Abu Ghraib scandal? It appears increasingly likely that these soldiers, as misguided as their actions were, acted in an atmosphere fostering criminal mistreatment. From this memo, one would be tempted to infer that the administration scapegoated these individuals to draw attention away from a broadly-held policy of sub-human treatment of adversaries. Can there be any accountability?

Dan Eggen: Actually, the impact of this memo could be to shield even low-level soldiers from any punishment for harsh treatment. Yoo's memo essentially argues that a broad range of conduct, including assault and other physical contact, may not be prosecutable. Much of the document reads like a defense brief on behalf of a wayward interrogator. It may complicate the few court cases that are left.

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Dan Eggen: Well folks, we're out of time. Thanks for all of your great questions, and I'm only sorry I couldn't answer more of them.

Keep reading!

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