Snoopers Tip #10: Documentary Resources on Torture

by Michael Matheron · May 9, 2009

With the release of more and more Bush era documents regarding torture I remembered that my very first posting on 2007 was on the topic, and thought then that a Snoopers Tip (TM) is really rather timely now. This Snoopers Tip provides a list of torture-related documents thus far released and links to them. As always, we want to have the authoritative, primary resources available when we want to compare our own reading of the documents with the media reporting. Also, following the document links I’ve provided a number of other related primary and secondary resources.

If you keep this post as a bookmark you can return to it whenever you want to check one of these references. In cases like these, with torture such a highly charged issue, media reporting is varied and too often extremely biased. Having these links to the primary documents at your fingertips can help you keep ’em honest. . .

The parenthetical remarks following each document are derived from the ACLU’s comments section in their very useful Index of Bush-Era OLC Memoranda Relating to Interrogation, Detention, Rendition and/or Surveillance. I highly recommend their chart for the torture documents highlighted in this posting, but also for other issues such as surveillance. Their chart also lists documents that are still classified/secret.

The individuals in the list below are referenced as either authors or recipients of the memoranda:

Ashcroft, John, Attorney General
Bradbury, Steven G., Principal Deputy Assistant Attorney General
Bush, George W., President of the United States
Bybee, Jay S., Assistant Attorney General, DOJ, Office of Legal Counsel (OLC)
Comey, James B., Deputy Attorney General
Goldsmith III, Jack L., Assistant Attorney General, OLC
Haynes II, William J., General Counsel, Department of Defense
Levin, Daniel, Acting Assistant Attorney General, OLC
Rizzo, John A., Senior Deputy General Counsel, CIA
Rockefeller IV, John D., U.S. Senator
Yoo, John, Deputy Assistant Attorney

Bush Administration Memoranda Declassified
and or Otherwise Released

Bybee – 1-22-2002 to Gonzales. Application of Treaties and Laws to al Qaeda and Taliban Detainees.

(Finds that because customary international law constitutes neither federal law nor a treaty recognized under the Supremacy Clause, CIL does not bind the President or restrict the actions of the U.S. military)[See Bradbury, 1/21/2009, no. 8, below]

Bush – 2-07-2002 to National Security team. Humane Treatment of Taliban and al Qaeda Detainees

(the President concludes that (1) none of the provisions of the Geneva Conventions apply to the conflict with al Qaeda, (2) the President has authority to suspend obligations under the Geneva Conventions with regard to Afghanistan, (3) Common Article 3 does not apply to al Qaeda or Taliban detainees, and (4) Taliban and al Qaeda detainees do not qualify as prisoners of war.)

Bybee – 3-13-2002 to Gonzales. The President’s power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations

(Concludes that, “the President has plenary constitutional authority, as the commander in chief, to transfer such individuals who are held and captured outside the United States to the control of another country.”) [See Bradbury, 1/21/2009, no. 1, below]

Bybee – 8/01/2002 to Haynes III. Standards of Conduct of Interrogation under 18 U.S.C. Sections 2340-2340A

(Concludes that conduct rises to the level of torture under domestic law and the Convention Against Torture only if it causes pain akin to pain associated with organ failure, impairment of bodily function and death. Prosecution for such acts may be barred where it infringes upon the President’s Commander-in-Chief powers to conduct war and necessity and self-defense may justify interrogation.)[See Bradbury, 1/21/2009, no. 4, below]

Yoo – 8-01-2002 to Gonzales. Memo from Deputy Assistant Attorney General John Yoo To Alberto R. Gonzales, White House Counsel

(Concludes that interrogation methods that comply with 18 U.S.C.§2340-2340A do not violate international obligations under the Convention Against Torture based on the U.S. reservation requiring specific intent. Additionally, the methods could not fall under the jurisdiction of the International Criminal Court because (1) “a state cannot be bound by treaties to which it has not consented;” and (2) even if the ICC could act, the methods do not fall within the Rome Statute’s crimes since they are not a “widespread and systematic” attack on civilians and neither al Qaeda members or Taliban soldiers qualify as prisoners of war.)

Bybee – 8-01-2002 to Gonzales. Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency – Interrogation of al Qaeda Operative [Abu Zubaydah]

(Concludes that the CIA’s proposed interrogation plan for Abu Zubaydah — which contemplates methods including “insects placed in a confinement box” and “the waterboard” — does not violate the torture statute.)[See Bradbury, 1/21/2009, no. 4. below]

Yoo – 3-14-2003 to Haynes III. Memorandum for William J. Haynes II, General Counsel of the Department of Defense – Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States

(Concludes that the Fifth Amendment’s due process protections and the Eight Amendment’s prohibition against cruel and unusual punishment do not apply to enemy combatants held abroad and that federal criminal laws of general applicability do not apply to authorized interrogations of enemy combatants. Also asserts that customary international law can be overridden by the President at his discretion.)[See Bradbury, 1/20/2009, no. 5, below]

Goldsmith III – 3-18-2004 to Gonzales. “PROTECTED PERSON” STATUS IN OCCUPIED IRAQ
UNDER THE FOURTH GENEVA CONVENTION

(Concludes that the following categories of people are not “protected persons” within the meaning of the Fourth Geneva Convention: are not “protected persons” within the meaning of article 4 of the Fourth Geneva Convention: U.S. nationals, nationals of a State not bound by the Convention, nationals of a co-belligerent State, and operatives of the al Qaeda terrorist organization who are not Iraqi nationals or permanent residents of Iraq.)

Goldsmith III – 3-19-2004 to Gonzales and others. Draft Opinion on Permissibility of Relocating Certain “Protected Persons” from Occupied Iraq

(Concludes that under the 1949 Geneva Convention (IV), the government can remove “protected persons” who are illegal aliens from Iraq to another country to facilitate interrogation. Additionally, the government can remove “protected persons” who have not been accused of a crime, irrespective of whether they are illegal aliens, so long as it is for a brief period and adjudicative proceedings have not been initiated against them.)

Levin – 12-30-2004 to Comey. LEGAL STANDARDS APPLICABLE UNDER 18 U.S.C. §§ 2340-2340A

(Issued to supersede John Yoo’s August 2002 torture memo. Concludes that Congress’s definition of torture, which requires conduct intended to cause severe pain, is not limited to “excruciating and agonizing” pain or suffering.)

Bradury – 5-10-2005 to Rizzo. Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee

(Concludes that the CIA’s interrogation techniques do not violate the torture statute if used individually.)

Bradbury – 5-10-2005 to Rizzo. Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees

(Concludes that the techniques outlined in the other 05/10/05 Bradbury memo would not violate the torture statute even if used in combination)

Bradbury – 5-30-2005 to Rizzo. Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees

(Concludes that “the use of these techniques, subject to the CIA’s careful screening criteria and limitation and its medical safeguards, is consistent with the United States obligations under Article 16.”)

Bradbury – 1-15-2009 (to File). Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001

(Advises that “certain propositions stated in several opinions issued by the Office of Legal Counsel from 2001-2003 respecting the allocation of authorities between the President and Congress in matters of war and national security do not reflect the current views of this Office.”)

Office of the Director of National Intelligence – 4-16-2009 to public. Member Briefings on Enhanced Interrogation Techniques (EITs)

(Lists chronologically the briefings for Members of Congress beginning on September 2, 2002.)

From Eric Holder, Jr. – 4-22-2009 to Senator Rockefeller. RELEASE OF DECLASSIFIED NARRATIVE DESCRIBING THE DEPARTMENT OF JUSTICE OFFICE OF LEGAL COUNSEL’S OPINIONS ON THE CIA’S DETENTION AND INTERROGATION PROGRAM
SENATOR JOHN D. ROCKEFELLER IV APRIL 22, 2009

(Sen. Rockefeller, from the introduction: “The release of the following declassified narrative completes an effort that I began last year as Chairman of the Select Committee on Intelligence. The document is an effort to provide to the public an initial narrative of the history of the opinions of the Department of Justice’s Office of Legal Counsel (OLC), from 2002 to 2007, on the legality of the Central Intelligence Agency’s detention and interrogation program.)

Disclosed in this release are still-secret memoranda. The narrative released via Attorney General Holder to Senator Rockefeller, however, does provide an initial narrative of a variety of these memos:

Ashcroft, John – 7/22/2004 to Director, CIA (Written confirmation that the use of the interrogation techniques addressed by the 08/01/02 Bybee memo, other than waterboarding, would not violate the Constitution or any statute or treaty obligation.)
Levin – 08/06/04 to unknown (Written confirmation that, subject to the CIA’s proposed limitations, waterboarding would not violate the Constitution or any statute or treaty obligation.)
OLC – 08/XX/06 to CIA (Opinion interpreting the Detainee Treatment Act with respect to the conditions of confinement in CIA facilities.)
OLC – 08/XX/06 to CIA (Letter interpreting Common Article 3, as enforced by the War Crimes Act, with respect to conditions of confinement in CIA facilities.)
OLC – 07/XX/07 to CIA (Opinion analyzing legality of the interrogation techniques authorized for use in the CIA program under Common Article 3, the Detainee Treatment Act, and the War Crimes Act. Released in conjunction with Executive Order 13,440, which interpreted the obligations imposed upon the U.S. by Common Article 3.)