A set of legal memoranda known as the "Torture Memos" (officially the Memorandum Regarding Military Interrogation of Alien Unlawful Combatants Held Outside The United States) were drafted by John Yoo as Deputy Assistant Attorney General of the United States and signed in August 2002 by Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel of the United States Department of Justice. They advised the Central Intelligence Agency, the United States Department of Defense, and the president on the use of enhanced interrogation techniques—mental and physical torment and coercion such as prolonged sleep deprivation, binding in stress positions, and waterboarding—and stated that such acts, widely regarded as torture, might be legally permissible under an expansive interpretation of presidential authority during the Global War on Terrorism.
Following accounts of the Abu Ghraib torture and prisoner abuse scandal in Iraq, one of the memos was leaked to the press in June 2004. Jack Goldsmith, then head of the Office of Legal Counsel, had already withdrawn the Yoo memos and advised agencies not to rely on them. After Goldsmith was forced to resign because of his objections, Attorney General John Ashcroft issued a one paragraph opinion re-authorizing the use of torture. Then in December 2004, another head of OLC reaffirmed the original legal opinions.
In May 2005, the CIA requested new legal opinions about the interrogation techniques it was using. The OLC issued three memos that month, signed by Steven G. Bradbury, ruling on the legality of the authorized techniques if agents followed certain constraints. In addition to these memos issued by the OLC to executive agencies, internal memos were written related to the use of torture in interrogation of detainees; for instance, in 2002 and 2003, Donald Rumsfeld, Secretary of Defense, signed several memos authorizing "Special Interrogation Plans" for specific detainees held at Guantanamo Bay in an attempt to gain more information from them.
The memoranda have been the focus of considerable controversy over executive power, government practices, and the treatment of detainees during the George W. Bush administration. The orders were rescinded by Barack Obama on January 22, 2009, two days after he started his presidency.
The "Torture Memos" 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. Yoo told an interviewer in 2007, "there was an urgency to decide so that valuable intelligence could be acquired from Abu Zubaydah, before further attacks could occur."
Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A Jay Bybee, then assistant U.S. attorney general and head of the OLC, addressed a memorandum to Alberto Gonzales, 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". It concludes that torture is only: extreme acts according to the United Nations Convention against Torture; that severe pain (a requisite for this definition of torture) is "serious physical injury, such as organ failure, impairment of bodily function, or even death"; that prolonged mental harm is harm that must last for "months or even years"; that "prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President's authority to conduct war"; and that "under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A."
Part I Part one, in which the text and history of the U.S. torture statute (18 U.S.C. §§ 2340–2340A) is examined, mainly addresses Bybee's interpretation of the definition of torture, including the definition of severe physical and mental pain or suffering.
In the first section, the memorandum states that the statute requires specific intent (the convention only requires general intent, but the "specific intent" language is found in the U.S. ratification reservation), and in citing case law, precedent states that specific intent means that "the infliction of [severe] pain must be the defendant's precise objective" and reminds the reader that "general intent" requires only actions that would be reasonably likely to result in a violation of the statute. The article concludes that, "even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent". It suggests that a jury would likely act contrary to law (out of misunderstanding) by finding such an individual guilty regardless.
In the second section, the memo admits difficulty in finding any clear definition for the "severe pain or suffering" required by the torture statute (which is also required by the UN Convention). After examining the definition provided in various dictionaries, it concludes that "pain" is synonymous with "suffering" ("it is difficult to conceive of such suffering that would not involve severe physical pain"), and, selecting among the many definitions, the memo proposes that severe pain must be difficult to endure (some definitions quoted in the memo define severe pain as "inflicting discomfort"). In searching for a reference to the term in other U.S. statutes and law, it quotes from a health care law that defines "emergency condition", but merely mentions "severe pain" in passing. That statutory subsection, 8 U.S.C. § 1395w-22(d)(3)(B), defines an emergency condition as a condition "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that [one] ... could reasonably expect the absence of immediate medical attention to result in placing the health of the individual ... in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part".
The memorandum concludes with a narrow definition of torture, that its "severe pain" must necessarily be pain associated with "death, organ failure, or serious impairment of body functions". It also states that the statute requires "prolonged mental harm" to accompany mental or physical pain, and that "prolonged" means a duration of months or years.
Part II The memo discusses the Convention Against Torture (which the memo calls the "Torture Convention") and concludes that the convention makes a distinction between torture and "cruel, inhuman, or degrading treatment or punishment", and that therefore torture is "only the most extreme acts", which the memo concludes, together with the ratifying reservations of the United States, confirms the interpretation of torture found in part one. It concludes that torture does not include "other acts of cruel, inhuman or degrading treatment or punishment" because such language is found in a different article than the definition of torture, and because it appears that the convention does not intend to criminalize such action, but instead discourage it. The memo examines the ratification history, and cites U.S. case law stating that the executive branch's interpretation of the treaty "is to be accorded the greatest weight in ascertaining a treaty's intent and meaning". It finds in the congressional record that the Reagan administration understood torture to be "at the extreme end of cruel, inhuman and degrading treatment or punishment", and that such treatment or punishment, which is not torture, to be "the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States."
The understanding of the George H. W. Bush administration, which ratified the Convention, was different from that of the Reagan administration. It failed to promote any language regarding torture to be only "extremely cruel" behavior resulting in "excruciating and agonizing" pain, and instead, filed a reservation that quoted the text of the U.S. torture statute. The memorandum states that, on the basis of the conclusions reached in part one, "there was little difference between these two understandings and ... the further definition of mental pain or suffering merely sought remove [sic] the vagueness created by concept of 'agonizing and excruciating mental pain." The memo quotes a legal adviser of the Department of State, who stated that, "no higher standard was intended by the Reagan administration understanding than was present in the Convention or the Bush understanding".
The memo examines the negotiating history of the Convention, and finds that the U.S. originally proposed the terms "extremely severe pain or suffering", and that the U.K. proposed the terms, "extreme pain or suffering rather than ... severe pain or suffering", and states that "[u]ltimately, in choosing the phrase "severe pain", the parties concluded that this phrase "sufficient[ly] ... convey[ed] the idea that only acts of a certain gravity shall ... constitute torture", rather than all acts that are inhumane and degrading. It concludes that the "ratification history and negotiating history [of the convention] all confirm that Section 2340A reaches only the most heinous acts", and thus implies that this confirms its definition of torture in part one, section two of this memo.
Part III