Lawyers’ Statement on Bush Administration’s Torture Memos
TO: President George W. Bush
Vice President Richard B. Cheney
Secretary of Defense Donald Rumsfeld
Attorney General John Ashcroft
Members of Congress
This is a statement on the memoranda, prepared by the White House,
Department of Justice, and Department of Defense, concerning the war
powers of the President, torture, the Geneva Convention Relative to the
Treatment of Prisoners of War of August 12, 1949, and related matters.
The Administration’s memoranda, dated January 9, 2002,
January 25, 2002, August 1, 2002 and April 4, 2003, ignore and
misinterpret the U.S. Constitution and laws, international treaties and
rules of international law. The lawyers who approved and signed these
memoranda have not met their high obligation to defend the Constitution.
Americans have faith that our government respects the Constitution, the
Bill of Rights, laws passed by Congress, and treaties which the United
States has signed. We have always looked to lawyers to protect these
rights. Yet, the most senior lawyers in the Department of Justice, the
White House, the Department of Defense, and the Vice
President’s office have sought to justify actions that violate the most
basic rights of all human beings.
The memoranda prepared and approved by these lawyers:
- Claim a power for the President as Commander-in-Chief to choose to
ignore laws, treaties and the Constitution regarding the treatment of
(DOD memo, April 4, 2003).
- Advise the President that he has the authority to approve the
infliction of extreme physical and mental distress by defining
“torture” so narrowly as to exclude all but treatment that is
“equivalent in intensity to the pain accompanying serious physical
injury, such as organ failure, impairment of bodily function, or even
death.” According to
the Administration’s memoranda, mental pain or suffering does not
amount to torture unless “it results in significant psychological harm
of significant duration, e.g., lasting for months or even years.” (DOJ
memo, August 1, 2002). This memo was reportedly prepared in order to
provide legal bases and defenses for harsh methods already
used by the CIA, in the event that CIA agents were prosecuted for
violation of the federal antitorture statutes.
- Assert the permissibility of the use of mind-altering drugs that do
not “disrupt profoundly the sense of personality.” According to the
“By requiring that the procedures and the drugs create a profound
disruption, the statute
requires more than that the acts ‘forcibly separate’ or ‘rend’ the
senses or personality. Those acts must penetrate to the core of an
individual’s ability to perceive the world around him, substantially
interfering with his cognitive abilities, or fundamentally alter his
personality.” (DOJ memo, August 1, 2002).
- Advise the President that despite concerns raised by the Department
of State, the U.S. is exempt from compliance with the Geneva Convention
on the Treatment of Prisoners of War with respect to the war in
Afghanistan. (See White House Counsel Memo, January 25, 2002). This
argument ignores that the treaty, by its own terms, governs all
conflicts “at any time and in any place whatsoever,” and protects even
unlawful combatants who do not qualify as prisoners of war from
“humiliating and degrading treatment” and “mutilation, cruel treatment
(Geneva Convention Relative to the Treatment of Prisoners of War, Aug.
12, 1949, art. 3 para. 1). As stated by Attorney General John Ashcroft,
the purpose of claiming an exemption from the Geneva Convention was to
provide American intelligence, military and law enforcement personnel
with a defense to charges relating to “field conduct, detention conduct
or interrogation of detainees” that is prohibited by the Geneva
Convention. (Letter to the President, Feb. 1, 2002).
- Contrived defenses by distorting definitions of “necessity,”
“self-defense,” and “superior orders” in order to avoid independent
responsibility for actions that would violate the U.S. Army Field
Manual and relevant statutory and case law.
(DOJ memo, August 1, 2002; DOD memo, April 4, 2003).
These memoranda and others like them seek to circumvent long
established and universally acknowledged principles of law and common
decency. The memoranda
approve practices that the United States itself condemns in its annual
Human Rights Report. No matter how the memoranda seek to redefine it,
torture remains torture. The belated repudiation of the August 2002
memorandum (which had been signed by Jay S.
Bybee, then Assistant Attorney General, Office of Legal Counsel and now
a Federal Judge) is welcome, but the repudiation does not undo the
abuses that this memorandum
may have sanctioned or encouraged during the nearly two years that it
was in effect. The subsequent repudiation, coming after public outcry,
confirms its original lawless character.
Moreover, the claim that the President’s authority as
Commander-in-Chief allows him to ignore laws, treaties, and the
Constitution relevant to human rights, and thereby to shield those
acting on his authority who violate domestic and international law by
their interrogation methods and other behavior, directly contradicts
several major Supreme Court decisions, numerous statutes passed by
Congress and signed by Presidents, and specific provisions of the
Constitution itself. One of the surprising features of these legal
memoranda is their failure to acknowledge the numerous sources of law
their own positions, such as the Steel Seizure Case, Youngstown Sheet
and Tube Co. v. Sawyer, 343 U.S. 579 (1952). The unprecedented and
under-analyzed claim that the Executive Branch is a law unto itself is
incompatible with the rule of law and the principle that no one is
above the law.
The lawyers who prepared and approved these memoranda have failed to
meet their professional obligations. A lawyer has a duty both to ask
his or her client what the client wants to do and assist the client in
accomplishing his or her lawful objectives. But the lawyer has a
simultaneous duty, as an officer of the court and as a citizen, to
uphold the law.
Enforcement of all of our laws depends on lawyers telling clients not
only what they can do but also what they can not do. This duty binds
all lawyers and especially lawyers in
government service. Their ultimate client is not the President or the
Central Intelligence Agency, or any other department of government but
the American people.
When representing all Americans, government lawyers must adhere to the
Constitution and the rule of law. In fact, government lawyers take the
following oath: “I . . . do
solemnly swear (or affirm) that I will support and defend the
Constitution of the United States…”
Conscientious leaders of the Department of Justice and lawyers in other
governmental agencies have always striven to meet that standard. But
some of those currently occupying senior legal positions in this
Administration in this instance have abandoned this standard. They have
counseled individuals to ignore the law and offered arguments
to minimize their exposure to sanction or liability for doing so.
While the facts cited above are established, much, however, is still
not known, for the Administration refuses to produce other memoranda
and documents relating to treatment of prisoners and detainees.
(1) Call upon the Administration to release all memoranda relating to
such treatment and
on Congress to require their production if they are not released; and
(2) Call for an appropriate inquiry into how and why such memoranda
were prepared and
by whom they were approved, and whether there is any connection between
the memoranda and the shameful abuses that have been exposed and are
being investigated at
Abu Ghraib prison in Baghdad and at other military prisons.