'The Blueprint That Led to Abu Ghraib'

Human Rights

Last Tuesday, the Defense and Justice departments released a previously classified 2003 memo, which claimed 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." Written by John Yoo, who was then the deputy assistant attorney general in the Office of Legal Counsel (OLC), the memo is "similar [to], although much broader" than, the infamous 2002 torture memo, which was co-written by Yoo and redefined torture to be only "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death." In the 2003 memo, Yoo also asserted that "many American and international laws would not apply to interrogations overseas" because they "would be unconstitutional as applied in this context." Like its 2002 predecessor, Yoo's 2003 memo was rescinded by Jack Goldsmith when he took over the OLC in December 2003 because of "the unusual lack of care and sobriety in their legal analysis." Even though many legal experts, such as former Army judge advocate general Thomas Romig, find Yoo's argument that "there are no rules in a time of war" to be "downright offensive," Yoo defends his memos as "near boilerplate." Far from seeing it as "boilerplate," former OLC lawyer Martin Lederman argues that Yoo's 2003 memo "is the source of the Nile for the abuse that occurred in Iraq in 2003."

CREATING THE "CULTURE OF ABUSE": According to "some legal experts and advocates" who spoke to the New York Times, Yoo's 2003 memo "adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials and not just irresponsible actions by low-level personnel." Noting that OLC opinions are "binding on the Defense Department," Scott Silliman, the head of the Center on Law, Ethics and National Security at Duke University and a former Air Force lawyer," says Yoo's memo "effectively sidelined military lawyers who strongly opposed harsh interrogation methods." "The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere," Silliman told the Times. Yoo rejects the idea that his legal opinions have any relation to detainee abuses that occurred in Iraq. "The 'culture of abuse' theory has no reliable evidence to support it," Yoo told the New York Times. But Lederman believes that Yoo's 2003 memo is "the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004." His thesis is supported by the timeline of events surrounding the administration's deliberations on interrogation policy and the abuses at Abu Ghraib. According to Maj. Gen. Antonio Taguba's report on Abu Ghraib, the "sadistic, blatant and wanton criminal abuses" at the prison took place between October 2003 and December 2003, which was after Yoo issued his memo but before it was rescinded by Goldsmith.

DRUGGING DETAINEES?: In October 2006, lawyers for Jose Padilla, who was found guilty in 2007 of supporting terrorism overseas, claimed in court papers that U.S. authorities gave him "drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations." Rather than directly denying Padilla's claim, the Defense Department simply claimed that it does not torture and "it has always been our policy to treat all detainees humanely." Now, the release of Yoo's 2003 memo lends support to allegations that the United States may have drugged detainees. In the memo, "Yoo advised top Bush administration officials that interrogators could employ mind-altering drugs if they did not produce 'an extreme effect' calculated to 'cause a profound disruption of the senses or personality.'" Jeffrey Kaye, a clinical psychologist who works with torture victims at Survivors International in San Francisco, told CQ's Jeff Stein that he believes such drugs "have been used." "I came across some evidence that they were using mind-altering drugs, to regress the prisoners, to ascertain if they were using deception techniques, to break them down," said Kaye.

FOURTH AMENDMENT FOOTNOTE: The release of Yoo's 2003 memo on interrogation also led to the revelation of another wide-ranging Bush administration legal opinion which claimed the war on terror trumped constitutional protections. A footnote in the 2003 memo states that the OLC "concluded that the Fourth Amendment had no application to domestic military operations." The footnote is referring to an October 2001 memo written by Yoo that "focused on the rules governing any deployment of U.S. forces inside the country 'in the event of further large-scale terrorist activities' by al-Qaeda." In effect, the memo meant that , the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism." The memo was written "just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time." White House Spokesman Tony Fratto, however, says the wiretapping program, known as the Terrorist Surveillance Program, "relied on a separate set of legal memoranda." The same 2001 memo, according to a footnote in the 2002 torture memo, "also concluded that Posse Comitatus -- an 1878 statute barring the military from participating in "law and order" missions domestically, under most circumstances -- does not apply to the war on terror."

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