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Two weeks before U.S. intelligence agents captured a “high-value” terrorist detainee in Pakistan in March 2002 and whisked him off to a “black site” prison in Thailand where he was allegedly tortured, the Department of Justice prepared a legal memorandum for George W. Bush stating he could ignore a law that prohibited the transfer of prisoners to countries that engage in torture.
The March 13, 2002 legal memo signed by Jay Bybee, then an assistant attorney general in the Justice Department's Office of Legal Counsel (OLC), was released publicly for the first time Monday along with seven other previously secret OLC memorandums. Just a little more than a month before, on Feb. 7, 2002, Bush had signed an executive order that that excluded “war on terror” suspects from Geneva Convention protections. But the March 13, 2002 memo went even further than Bush's action memorandum. The March 13, 2002 memo said prisoners detained outside the U.S. were not protected by U.S. laws outlawing torture or against international treaties banning torture. The treaty, the Convention Against Torture, was signed by President Ronald Reagan in 1988 but not ratified by the Senate until a decade later.
"The United States participated actively and effectively in the negotiation of the Convention [against Torture],” the treaty says. “It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today."
Furthermore, the March 13, 2002 memo said a 1998 law that became U.S. policy prohibiting the federal government from turning over prisoners to countries where they may be tortured was not valid because it infringed upon the president's constitutional commander-in-chief powers.
Although his name is not on the memo, the text of the 34-page document is believed to have been written by John Yoo, a former deputy assistant attorney general at OLC, according to the book “Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy,” by journalist Charlie Savage.
This memo is one of several that the Justice Department's Office of Professional Responsibility (OPR) has scrutinized in a four-year-old investigation into the legal work of Yoo and Bybee, according to legal sources at the DOJ who have seen a still classified report on the work of the OLC.
The memo, prepared for then Department of Defense General Counsel William Haynes, was the product of several high-level meetings that took place over the course of several weeks that Yoo and Bybee participated in along with senior Bush administration officials.
The legal opinion was not, legal sources said, the result of a question "asked and answered" but rather the result of Bybee and Yoo acting as advocates for administration policy and providing the legal framework so the White House could carry out its plans.
OPR has in fact probed whether Yoo and Bybee deliberately signed off on the March 13, 2002 memo and purposely misinterpreted long-standing case law simply to give the administration legal cover for extraordinary renditions. The memo specifically offers up ways in which government officials could avoid legal liability if detainees were tortured.
"To fully shield our personnel from criminal liability, it is important that the United States not enter in an agreement with a foreign country, explicitly or implicitly, to transfer a detainee to that country for the purpose of having the individual tortured," the memo says. "So long as the United States does not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer. Even if the foreign country receiving the detainee does torture him."
Scott Horton, an expert on international law who helped prepare a report on renditions for NYU School of Law and the New York Bar Association, said the March 13, 2002 memo “is more evidence of deep engagement by OLC with the extraordinary renditions program.”
“In fact the memo is designed to cut through the historical problems associated with rendition to establish its legality on the back of a lunatic view of commander-in-chief powers.” Horton said. “If we had to boil the memo down to one sentence it would be ‘the executive is the law, and no other law matters.’ But that's the very proposition that the Founding Fathers went to war to overturn. In the course of the analysis, the Geneva Conventions are misapplied, authority that suggests the opposite conclusion is suppressed, the Constitution is misquoted and incorrectly interpreted to read into oblivion an express provision giving Congress final say over rules governing prisoners in wartime and the Convention Against Torture is also neutered.
“The themes touched upon make clear that the author fully understands how the extraordinary renditions program works. The prisoner is held outside of legal recourse in any legal system, or "disappeared." He is moved to a cooperating foreign state where he will be subjected to torture through a proxy arrangement with a foreign intelligence or police service.
“There is no prospect of the person ever being subjected to criminal charges, or accorded any rights under the laws of armed conflict. This is an effort to craft a legal black hole in which no law of any sort applies, and the executive is free to do whatever he likes. And that is what Thomas Jefferson and James Madison called ‘tyranny.’ I can easily see this document appended as an exhibit to a criminal indictment of its authors.”