[JURIST] The US Department of Justice advised the US Department of Defense [official websites] in 2003 that military interrogators could employ a wide range of interrogation methods when questioning foreign detainees outside the United States without fear of criminal liability or constitutional sanction, according to a 2003 memorandum [PDF text] made public for the first time Tuesday. The 81-page document, later rescinded by the DOJ, authorized the same broad limits that the DOJ had earlier approved for the CIA, saying that:
we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad... [S]everal canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability to not apply to properly-authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President...The document, authored by former deputy assistant attorney general John Yoo, was disclosed [ACLU press release] as a result of an American Civil Liberties Union [advocacy website] lawsuit brought against the DOD under the Freedom of Information Act [5 USC 552 text].
[W]e examine the international law applicable to the conduct of interrogations...[and] conclude that...the United States' obligation extends only to conduct that is "cruel and unusual" within the meaning of the Eighth Amendment or otherwise "shocks the conscience" under the Due Process Clauses of the Fifth and Fourteenth Amendments...
[W]e discuss defenses to an allegation that an interrogation method might violate any of the various criminal prohibitions...We believe that necessity or self-defense could provide defenses to a prosecution.
In January, convicted terrorism conspirator Jose Padilla filed a lawsuit [JURIST report] against Yoo for his role in drafting memos that denied Geneva Conventions protections against torture to detained enemy combatants. Yoo contended that because Guantanamo Bay detainees had no status under US federal law, "as a result, any customary international law of armed conflict in no way binds, as a legal matter, the President or the US Armed Forces concerning the detention or trial of members of al Qaeda and the Taliban." The New York Times has more. The Washington Post has additional coverage.