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Wednesday, April 2, 2008 - Page updated at 12:00 AM

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Presidential powers said to sanction torture

The Washington Post

WASHINGTON — The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaida captives because the president's authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly Tuesday, argues that poking, slapping or shoving detainees would not give rise to criminal liability.

The document also appears to defend the use of mind-altering drugs that do not produce "an extreme effect" calculated to "cause a profound disruption of the senses or personality."

Although the existence of the memo has long been known, its contents had not been disclosed.

It was rescinded nine months after it was sent to the Pentagon's top lawyer, William Haynes.

Sent to the Pentagon's general counsel on March 14, 2003, by John Yoo, then a deputy in the Justice Department's Office of Legal Counsel, the memo provides an argument for nearly unfettered presidential power in a time of war.

It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers.

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," Yoo wrote.

Interrogators who harmed a prisoner would be protected by a "national and international version of the right to self-defense," Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must "shock the conscience" — that the Bush administration advocated for years.

"Whether conduct is conscience-shocking turns in part on whether it is without any justification," Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.

The document is similar, though broader, than a memo primarily written by Yoo in August 2002 that narrowly defined what constitutes illegal torture.

That document was also later withdrawn.

The documents are among the Justice Department legal memorandums that supported some of the highly coercive interrogation techniques used by the Bush administration, including extreme temperatures, head-slapping and a type of simulated drowning called waterboarding.

In 2005, after public controversy over such methods, Congress limited Defense Department officials to interrogation methods listed in the Army Field Manual, which was rewritten to forbid many of the aggressive methods.

The CIA was exempted, however, and President Bush vetoed recent legislation that would have applied the same requirements to that agency.

Yoo, now a law professor at the University of California, Berkeley, defended the memo in an e-mail Tuesday, saying the Justice Department altered its legal opinions "for appearances' sake."

He said his successors "ignored the Department's long tradition in defending the President's authority in wartime."

"Far from inventing some novel interpretation of the Constitution," Yoo wrote, "our legal advice to the President, in fact, was near boilerplate."

Martin Lederman, a former lawyer with the Office of Legal Counsel who now teaches law at Georgetown University, said the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib.

"What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?" Lederman asked.

"It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone."

Copyright © 2008 The Seattle Times Company

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