Abu Ghraib and the Smoking Gun
The smoking gun has finally been revealed. Responding to an ACLU Freedom of Information Act request, the Justice Department has released a previously classified document it authored in 2001 which argues that the use of harsh interrogation methods does not constitute torture.
The Justice Department memo silenced any military lawyers who might have objected to the use of these methods. Interestingly, the memo, authored by John Yoo then deputy assistant attorney general, was classified as secret and was not shared with other Justice Department lawyers and not critiqued by anyone outside of the author’s circle.
The cover up story for the uses at Abu Ghraib has always been that it was the work of a few “rotten apples.” We were told that rogue non-commissioned officers and soldiers went off the deep end, but that the military and the government did not condone such behavior. Now we know that Justice Department was telling the military and its interrogators that their use of these techniques was legal and defensible.
Earlier this year RHR and other religious groups sponsored the showing of the film, “The Ghosts of Abu Ghraib.” Soldiers interviewed in the film, some of who were found guilty of having abused prisoners, said that they had been ordered to “soften up” detainees, that they were praised for their actions by their superiors and that they knew that harsher methods were being used by the interrogators themselves. No higher ups have been prosecuted for issuing such orders, nor have any interrogators been prosecuted for using inhumane techniques. Now we know why: they were authorized to do so by the Justice Department and any court would have found them innocent since they were acting with this legal authorization.
The memo argues that the President as commander-in-chief has the right to authorize these harsh techniques since he is acting in self-defense of the United States American criminal law and constitutional protections do not apply to enemy combatants, “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 memo says. It argues further, “Standard criminal law defenses of necessity and self-defense could justify interrogation methods needed to elicit information to prevent a direct and imminent threat to the United States and its citizens.”
Yoo futher explicates thes positions, "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...In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions." The New York Times has been reporting the findings on the memos that the American Civil Liberties has obtained. It quotes Scott L. Silliman, head of the Center on Law, Ethics and National Security at and a former Air Force lawyer, as saying that he did not believe that the 2003 memorandum directly caused mistreatment. The Times reports that Mr. Silliman though added, “The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere.”
