It's Official: Bush Administration Received Legal Advice Permitting Torture

Today the Washington Post published a copy of the Aug. 1, 2002, memorandum "Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A," from the Justice Department's Office of Legal Counsel for Alberto R. Gonzales, counsel to President Bush. The Memorandum was signed by Assistant Attorney General Jay S. Bybee, whom President Bush subsequently appointed to the 9th Circuit Court of Appeals.

The Gonzales/Bybee/OLC memo concludes that

under the circumstances of the current war against Al Qaeda and its allies, application of Section 2340A [a federal ban on torture] to interrogations undertaken persuant to the President's-Commander-in-Chief powers may be unconstitutional. Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.

Michael Froomkin analyzes the memo on his blog. The most important point is that this OLC memo is not a draft but official advice to the President. The OLC memo did not state that torture was wrong and that our government should not engage in it. Instead, it offered official advice about how to enagage in torture and escape criminal prosecution, or, in the alternative, to define prisoner abuse as not technically torture in order to escape criminal prosecution.

The Defense Department "torture memo" dated March 6, 2003 is from a Defense Department working group convened by Defense Secretary Donald H. Rumsfeld to come up with new interrogation guidelines for detainees at Guantanamo Bay, Cuba. It was first published by the Wall Street Journal. The torture memo is based on the Gonzalez/Bybee/OLC memo. The Gonzalez/Bybee/OLC memo is, if anything, even more damning to the Administration.

At hearings last week, Attorney General John Ashcroft refused to provide either memo to the Senate, while refusing to explain why or what legal privilege he was invoking to justify his actions.