The term "torture memos" was originally used to refer to three documents prepared by the
Office of Legal Counsel at the United States Department of Justice and signed in August 2002: "Standards of Conduct for Interrogation under 18 U.S.C. sections 2340–2340A" and "Interrogation of al-Qaeda" (both drafted by
Jay Bybee), and an untitled letter from
John Yoo to
Alberto Gonzales. Since the initial revelation of these documents, other communications related to the use of torture to coerce or intimidate detainees during the
Bush administration have been divulged. These include a December 2, 2002, internal
Department of Defense memo signed by
Donald Rumsfeld, then
secretary of defense, authorizing seventeen techniques in a "Special Interrogation Plan" to be used against the detainee
Mohammed al-Qahtani; a March 13, 2003, legal opinion written by John Yoo of the Office of Legal Counsel, DoJ, and issued to the General Counsel of Defense five days before the U.S.
invasion of Iraq started, concluding that federal laws related to use of torture and other abuse did not apply to agents interrogating foreigners overseas; and other DoD internal memos authorizing techniques for specific military interrogations of certain individual detainees. In 2005,
Alberto Gonzales testified before Congress that the CIA sought the 2002 opinion after having captured
Abu Zubaydah in 2002, who was then believed to be a significant
al-Qaeda figure who could provide important information to U.S. efforts to constrain and prevent terrorism. They were anxious to get as much information from Zubaydah as fast as possible. Questions by CIA officers over which tactics could be used on the detainee had spurred writing the torture memo, which is reflected in the language of the memo; "You have asked for this advice in the course of conducting interrogations of Abu Zubaydah." The memo's author,
John Yoo, acknowledged the memo authorized the "
enhanced interrogation techniques" used by the CIA in Zubaydah's interrogation. then
counsel to the president, dated August 1, 2002, titled "Standards for Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A." He was responding to the president's reported request for a legal opinion on the U.N. Convention Against Torture and 18 U.S.C. section 2340 and the interrogation of al-Qaeda operatives. This is the primary "torture memo," which defines the Department of Justice's (DOJ) interpretation of torture. It is relied upon heavily by the subsequent "torture memos." It discusses the language of the torture statute (18 U.S.C. §§ 2340–2340A) in detail in order to derive its definition of torture, states that "cruel, inhuman, or degrading" treatment is not torture according to that statute; and examines "possible defenses that would negate any claim that certain interrogation methods violate the statute". There was much administration opposition to releasing this memorandum to the public, and the first release was almost completely redacted. It summarizes the facts regarding
Abu Zubaydah and his resistance to interrogation, as related by the CIA. It summarizes the various methods of physical and psychological coercion to be used by the CIA against Zubaydah (see next section, Part I for details). It discusses the background of Zubaydah and the possible mental effects from such abuse, the background of the consultant to be assisting, and the details of the proposed coercive actions. It then applies the U.S. torture statute (18 U.S.C. §§ 2340–2340A) to each of these proposed actions. It concludes that none of these methods individually or simultaneously would be considered torture according to law.
Part I The first part says that the advice is provided in this memorandum applies only to the facts at hand regarding
Abu Zubaydah, and that the conclusions of the memorandum may change given different facts. Those facts, according to the top secret memorandum, are that Abu Zubaydah was being held by the United States, and that, "[t]he interrogation team is certain that he has additional information that he refuses to divulge" regarding terrorist groups in the U.S. or
Saudi Arabia planning attacks in the U.S. or overseas. It does not give any specifics or note what makes this conclusion certain. The memorandum states that it appears that the suspect has grown accustomed to their interrogation techniques, and refers to the threat of a possible attack in the United States by unknown individuals. Without further discussion, the fact summary concludes that the "high level of threat [the reader] believe[s] now exists" is why advice regarding further techniques is being sought. Continuing to summarize the facts, the memorandum summarizes the characteristics of the professionals present during the proposed interrogation techniques, and summarizes those coercive methods. It states that the purpose of these methods will be to "convince Zubaydah that the only way he can influence his surrounding environment is through cooperation". The memorandum describes in detail each of the techniques proposed as generally used, including attention grasp,
walling, facial hold, insult slap, cramped confinement (large and small and with and without an insect), wall standing, stress positions,
sleep deprivation, and
waterboarding. It clarifies that a medical expert will always be present "to prevent severe physical or mental harm[.]"
Part II Part two of this memorandum goes into detail how the techniques described in part one will be applied in
Abu Zubaydah's case. It describes the CIA practices, and reminds them how those practices are applied "to ensure that no prolonged mental harm would result from the use of these proposed procedures". This section reviews how no appreciable harm has ever resulted from the application of these techniques on U.S. military personnel, and that these techniques have the approval of the government medical experts who train in the application and subversion of these techniques. It summarizes the psychological profile provided of the subject, including his involvement in high-level terrorist activities [Note: as believed at the time, but found to be wrong] with al-Qaeda and his background training operatives in
resistance to interrogation, as well as his radical thinking, such as the fact that he "has stated during interviews that he thinks of any activity outside of jihad as "silly". It states that after substantial research of the individual's background, behavior and journal entries, interrogators believe he does not suffer from any psychological disorders or disturbances. This section concludes by emphasizing the potential value of the information he could provide, as well as his likely strong ability to resist standard interrogation techniques.
Part III This section provides legal analysis of the U.S. anti-torture law (18 U.S.C. §§ 2340–2340A) and the application of each of the proposed techniques in this particular situation. After summarizing the law, it analyses the elements of the offense of torture (inflicting severe pain or suffering), and the specific (or criminal) intent required by the statute for the offense.
Letter from Yoo to Alberto Gonzales , who drafted the Torture Memos
John Yoo, then deputy assistant attorney general in the
Office of Legal Counsel, addressed a memorandum to
Alberto Gonzales, then the counsel to the president, dated August 1, 2002, in response to Gonzales' reported request for legal opinion on whether interrogation methods used on
al-Qaeda operatives would be in violation of the
U.N. Convention Against Torture, and whether such actions could be the basis for prosecution in the
International Criminal Court. The letter is intended to supplement the
memorandum sent to Gonzales the same day by Jay Bybee, to which it occasionally refers. The letter concludes that the interpretation of the Department of Justice of 18 U.S.C. § 2340, which enacted into U.S. law the Convention Against Torture, does not conflict with the Convention because the United States recorded its reservations upon ratification. It also concludes that "actions taken as part of the interrogation ... cannot fall within the jurisdiction of the ICC, although it would be impossible to control the actions of a rogue prosecutor or judge." The letter explains the Department of Justice's interpretation of §§ 2340–2340A, their interpretation of the Convention Against Torture as applied to the United States and the status of the U.S. reservations, and explains its position on the possibility of prosecution by the ICC.
Part I In the explanation of the definition of torture according to 18 U.S.C. § 2340, it emphasizes the need for the pain to be severe, although it does not attempt to define what "severe pain or suffering" means. It also emphasizes that the individual inflicting such pain must have "specific intention to inflict severe pain or suffering". The letter explains § 2340's definition of "severe mental pain or suffering", and reminds the reader of the need for "prolonged mental harm".
Part II As the memo quotes from the definition of torture in the Convention Against Torture, it compares that definition to the one found in the U.S. statute, and analyzes the effect of the ratification reservation of the U.S. to the Convention. That reservation was mainly regarding Article One of the Convention, which defines torture, but it also states that the U.S. refuses to accept the jurisdiction of the International Court of Justice regarding conformity to the Convention. The memo notes that in the reservation, the U.S. added language of "specific intent" (as opposed to the "general intent" in the Convention), and it explained what was meant by mental pain or suffering (as in the U.S. statute). Commenting on the specificity of the reservation and statute regarding mental pain or suffering, the memo says, "this understanding ensured that mental torture would rise to a severity comparable to that required in the context of physical torture." The memo explains treaty law, which states that the U.S. is bound to the treaty only as modified by the reservation, and points out that the language of the reservation is "nearly identical" to that of 18 U.S.C. § 2340. Therefore, it states, if the interrogation conduct did not violate the U.S. statute, it would also not violate the U.S. obligations under the Convention. While the letter states there is little substantive difference between the definition of torture in the text of the statute (or reservation) and in the Convention, most of the material in this part of the memo is dedicated to explaining why the reservation to the Convention is valid and cannot be overturned. The memo closes this section reminding the reader of the refusal of the U.S. to accept the jurisdiction of the ICC, and that, "[a]lthough the Convention creates a [c]ommittee to monitor compliance, [the committee] can only conduct studies and has no enforcement powers."
Part III In discussing the possible prosecution by the ICC, the memo states that the U.S. did not ratify the necessary treaty for such jurisdiction (the
Rome Statute). The memo further argues that even if the ICC were to claim jurisdiction, "interrogation of an al-Qaeda operative could not constitute a crime under the Rome Statute," since it would not involve the "widespread and systematic attack directed against any civilian population" and would not be considered a
war crime. Yoo writes that, in his opinion, "[t]he United States' campaign against al-Qaeda is an attack on a non-state terrorist organization, not a civilian population." He also reiterates President W. Bush's "assertion" that "neither members of the al-Qaeda terrorist network nor
Taliban soldiers were entitled to the legal status of
prisoners of war under the [Geneva Convention]," and therefore planned interrogation methods would not constitute a violation of the
Geneva Convention, or war crime. This interpretation of the Geneva Convention was sent in memos, despite objections by attorneys and the secretary of state, on January 9, 2002, January 22, 2002, February 1, 2002, and again on February 7, 2002.
Conclusion Yoo concludes the letter by stating, "It is possible that an ICC official would ignore the clear limitations imposed by the Rome Statute, or at least disagree with the President's interpretation of [the Geneva Convention]. Of course, the problem of the 'rogue prosecutor' is not limited to questions about the interrogation of al-Qaeda operatives, but is a potential risk for any number of actions that have been undertaken during the Afghanistan campaign... We cannot predict the political actions of international institutions."
March 14, 2003, Memo from Yoo to DoD re: interrogation methods overseas After Bybee was confirmed in his appointment as a federal judge on March 13, John Yoo was the acting head of the OLC. He wrote a memo to the DoD on March 14, 2003, concluding that "federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects". This was five days before the
Iraq War. The legal opinion had been requested by
William J. Haynes, General Counsel of the Department of Defense. Yoo was acting head of OLC for several months before
Jack Goldsmith was approved for the position. In 2008, leaders of the Senate Intelligence and Armed Services committees concluded that the memo was used by the DoD to "justify harsh interrogation practices on terror suspects at
Guantánamo Bay" and the Abu Ghraib torture and prisoner abuse. ==OLC head Jack Goldsmith's withdrawal==