John Yoo’s Torture Memos

There doesn’t seem to be a good collection of the infamous and less infamous “torture memos” created by John Yoo, Robert Delahunty, James Bybee, and others in the Office of Legal Counsel at the Department of Justice during the reign of George W. Bush.  These memos provided, and continue to provide, a legal defense to the people who tortured, wiretapped, invaded, and otherwise violated fundamental rights and the laws of war.  They are saying, “But I asked my lawyer and he said it was OK” and in some cases they’re getting away with it.  Meanwhile the lawyers who wrote the memos have avoided being disbarred or prosecuted as well.  A nice strategy for getting away with murder, torture, and treason.

The following memos are some of those known or believed to have been authored, in whole or in part, by John Yoo during his tenure at the Office of Legal Counsel.  Some remain classified, and in some cases dates are approximate for that reason. (See January 5, 2005 letter from Senator Patrick Leahy requesting some of these documents, the Obama Administration’s March 2, 2009 release of many of the memos, and the 22 March 2009 ACLU Index of Bush-Era OLC Memoranda Relating to Interrogation, Detention, Rendition and/or Surveillance.) Some of the memoranda drafted by John Yoo and others in the Department of Justice and the Office of White House Counsel are collected in the book The Torture Papers.  Some of these opinions have been explicitly withdrawn or repudiated.

  • September 25, 2001 Memorandum for [[David S. Kris]], Associate Deputy Attorney General, “Re: Constitutionality of Amending Foreign Intelligence Surveillance Act to Change ‘Purpose’ Standard for Searches” (signed by John C. Yoo). Claims the US Federal Government’s “right to self defense” authorized warrantless searches under the [[Fourth Amendment to the United States Constitution|Fourth Amendment]]. Repudiated.{{cite web | url= |format=PDF|title=Memorandum regarding status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Acts of September 11, 2001 |publisher=US Department of Justice, Office of Legal Counsel |date=2009-01-15 |accessdate=2009-03-02}}
  • October 4, 2001 Memorandum for Alberto R. Gonzales, “Legal standards governing the use of certain intelligence techniques”, 36pp, “OLC 132″.  Created in response to a question from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists. See Plaintiff’s 2009-09-15 Supplemental Memorandum from the Electronic Privacy Information Center.
  • October 23, 2001 Memorandum for [[Alberto Gonzales]] and [[William J. Haynes, II]], “Re: Authority for Use of Military Force to Combat Terrorist Activities ‘’Within the United States'’” (signed by John C. Yoo and [[Robert Delahunty|Robert J. Delahunty]]). Claims the U.S. military can ignore several Constitutional provisions: the [[Fourth Amendment to the United States Constitution|Fourth Amendment]], the [[Takings Clause]], and the [[First Amendment to the United States Constitution|First Amendment]].{{cite web |url= |title=Bush Administration Claimed Fourth Amendment Did Not Apply to NSA Spying |publisher=[[Electronic Frontier Foundation]] |date=2009 |accessdate=2009-03-02}} Repudiated.{{cite web |url= |format=PDF|title=Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities |publisher=US Department of Justice Office of Legal Counsel |date=2008-10-06 |accessdate=2009-03-02}}
  • November 2, 2001 Memorandum to John Ashcroft, “Legality of communications intelligence activities”, 24pp.  Described in the Inspector General’s Report as “the first OLC opinion directly supporting the legality of the [NSA domestic surveillance program]”.  Quote: “the activity described in the Presidential Authorizations was ‘reasonable’ under the Fourth Amendment and therefore did not require a warrant.”  Known as “OLC 131″ in the ACLU/EPIC Freedom of Information litigation.
  • November 5, 2001 Memorandum, “Authority of the Deputy Attorney General Under Executive Order 12333″.  Opines that the Deputy Attorney General can approve the use of intelligence surveillance techniques.
  • November 6, 2001 Memorandum to Alberto Gonzales, “Legality of the Use of Military Commissions to Try Terrorists” (signed by [[Patrick F. Philbin]]).  “The President possesses inherent authority under the Constitution, as Chief Executive and Commander in Chief of the Armed Forces of the United States, to establish military commissions to try and punish terrorists captured in connection with the attacks of September 11 or in connection with U.S. military operations in response to those attacks.”  Not yet repudiated, though the Supreme Court found that the military commissions actually set up by the President were not lawful.[ June 8, 2002 Memorandum] for the Attorney General, “Determination of Enemy Belligerency and Military Detention”
  • November 15, 2001 Memorandum for John B. Bellinger III, “Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty” (signed by John C. Yoo and Robert Delahunty). Claims that Bush could suspend any provisions he wanted in the [[ABM Treaty]] with the USSR/Russia, or any other treaty, without even telling the Senate or other states-parties. Repudiated.
  • December 21, 2001 Memorandum for William J. Haynes II, “Possible Criminal Charges Against American Citizen Who Was a Member of the al Qaeda Terrorist Organization of the Taliban Militia”.{{cite web | url= |author=Judge Jeffrey S. White |title=Order Denying in Part and Granting in Part Defendant’s Motion to Dismiss (Document #68 in José Padilla and Estela Lebron v. John Yoo, case No. C 08-00035 JSW) |date=2009-06-12|accessdate=2009-06-16}}
  • [[Media:20011228-philbin-yoo-guantanamo-habeus-memo.pdf|December 28, 2001 Memorandum]] for William J. Haynes II, “Re: Possible Habeas Jurisdiction Over Aliens Held in Guantánamo Bay” (signed by John C. Yoo and Patrick F. Philbin).  Claimed that US district courts have no jurisdiction to help US prisoners held in Guantánamo.  Contrary to the opinions in this memo, the Supreme Court found habeas corpus jurisdiction over foreigners imprisoned in Guantánamo by the United States Government, in ‘’[[Rasul v. Bush]]'’.[[Rasul v. Bush]], 542 U.S. 466 (2004)
  • [[media:20020109_Yoo_Delahunty_Geneva_Convention_memo.pdf|January 9, 2002 draft Memorandum]] for William J. Haynes II, “Application of Treaties and Laws to al Qaeda and Taliban Detainees”, by John Yoo and Robert J. Delahunty.  Claims that al Qaeda and Taliban members are “not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs.”    This memo promptly led on January 19, 2002 to a [ secret order] from Secretary of Defense [[Donald Rumsfeld]] to his combat commanders, repeating its conclusions, and specifically ordering that the order be transmitted to “Joint Task Force 160″, which at the time was setting up the new detainee prison at Guantánamo.{{cite web |url= |title=When Gitmo Was (Relatively) Good |author=Karen J. Greenberg |publisher=The Washington Post |date=January 25, 2009 |accessdate=October 12, 2009}}  The [[Supreme Court of the United States|Supreme Court]] rejected this legal reasoning on June 29, 2006 in [[Hamdan v. Rumsfeld]], which stated, “The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply[…].  [T]here is at least one provision of the Geneva Conventions that applies here[…].  Common Article 3 […] is applicable here and […] requires that Hamdan be tried by a ‘regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’”  On July 7, 2006, [[Gordon England]] of the Defense Department  ordered that Common article 3 of the Geneva Convention – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.{{cite web
    |publisher=Financial Times | author=Demetri Sevastopulo and Holly Yeager |date=July 11, 2006; Last updated July 12, 2006 |accessdate=2009-10-13 |title=Pentagon to Give Rights to Detainees |url= }}{{cite web |url= |author=Gordon England |publisher=Office of the Secretary of Defense |Date=July 7, 2006 |title=Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense |accessdate=2009-10-13}}
  • January 11, 2002 Memorandum for Alberto Gonzales, “Geneva Conventions” (by John Yoo and Robert J. Delahunty).
  • January 14, 2002 Memorandum for William H. Taft, Legal Advisor, Department of State, “Prosecution for Conduct Against al Qaeda and Taliban Members under the War Crimes Act” (by John Yoo and Robert J. Delahunty).
  • [ January 22, 2002 Memorandum] for Alberto Gonzales and William J. Haynes II, “Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees” (signed by [[Jay S. Bybee]]). Repudiated.
  • January 24, 2002 Memorandum for Alberto Gonzales, “Geneva Conventions and prisoners of war”.
  • January 24, 2002 Memorandum for Larry D. Thompson, “Application of international law to the United States”.
  • [ February 7, 2002 Memorandum] for [[Alberto Gonzales]], “Status of Taliban Forces Under Article 4 of the [[Third Geneva Convention]] of 1949″ (signed by Jay S. Bybee).  [ Official version published by OLC], with one removed footnote.  “The President has reasonable factual grounds to determine that no members of the Taliban militia are entitled to prisoner of war status under Article 4 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War.”
  • February 8, 2002 Memorandum (”OLC 62″) for William J. Haynes II, “Re: (Classified Matter)”, by John C. Yoo.  Described in court declaration as “prepared in response to a request for OLC views regarding the legality of certain hypothetical activities”.  ACLU says it “proposes that FISA does not govern intelligence surveillance for national security purposes because FISA does not include a clear statement of intent to do so.”  Repudiated.{{cite web |url= |title=Second Redacted Declaration of Steven G. Bradbury |publisher=US Department of Justice, Office of Legal Counsel |page= 20 |date=2007-10-18
    |accessdate=2009-03-19}}{{cite web |url= |title=Sunshine Week: February 8, 2002 NSA Surveillance Memo |publisher=[[Electronic Frontier Foundation]] |date=2009-03-18 |accessdate=2009-03-19}}
  • [ February 26, 2002 Memorandum] for William J. Haynes II, “Re: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan” (signed by Jay S. Bybee).
  • [ March 13, 2002 Memorandum] for William J. Haynes II, “Re: The President’s Power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations” (signed by Jay S. Bybee). ‘’”We conclude that as Commander in Chief and Chief Executive, the President has the plenary constitutional power to detain and transfer prisoners captured in war. We also conclude that neither the GPW (Third Geneva Convention) nor the [[United Nations Convention Against Torture|Torture Convention]] restrict the President’s legal authority to transfer prisoners captured in the Afghanistan conflict to third countries. Although the GPW places conditions on the transfer of POWs, neither [[al-Qaeda]] nor [[Taliban]] prisoners are legally entitled to POW status, and hence there are no GPW conditions placed on their transfer. While the Torture Convention arguably might govern transfer of these prisoners, it does not apply extraterritorially.”‘’ Repudiated.
  • March 28, 2002 Memorandum for William H. Taft, Legal Advisor, Department of State, “March 22, 2002 DOS Memorandum”.
  • [ April 8, 2002 Memorandum] for Daniel J. Bryant, “Re: Swift Justice Authorization Act” (signed by Patrick F. Philbin). Claims that proposed legislation governing military tribunals impermissibly encroaches on the President’s alleged powers as ‘Commander in Chief’. Repudiated.
  • An OLC Memorandum drafted in or about May 2002, regarding access to counsel and legal mail of detainees held at the naval brigs in Norfolk and Charleston.
  • [ June 8, 2002 Memorandum] for the Attorney General, “Determination of Enemy Belligerency and Military Detention” (signed by Jay S. Bybee). Concludes that the US military has the legal authority to detain US citizen [[José Padilla (prisoner)|José Padilla]] as a prisoner captured during an international armed conflict. Not yet repudiated.
  • [ June 27, 2002 Memorandum] for Daniel J. Bryant, “Re: Applicability of 18 U.S.C. 4001(a) to Military Detention of United States Citizen” (signed by John C. Yoo).  Claims that statute flatly saying “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress” does not, and constitutionally could not, interfere with Bush’s claimed authority to detain José Padilla as ‘Commander in Chief’. Repudiated.
  • July 22, 2002 Memorandum for Alberto Gonzales, “Applicability of the Convention Against Torture”.  Concludes that the first fifteen articles of the Convention Against Torture are non-self-executing and place no affirmative obligations on the Executive Branch.
  • [ August 1, 2002 Memorandum] for Alberto R. Gonzales, “Re: Standards of Conduct for Interrogation Under 18 U.S.C. 2340-2340A” (signed by Jay S. Bybee) (the Bybee memo).  (Link includes August 1, 2002 cover letter summarizing memo.)  Repudiated.{{cite web |url= |title=Re: Legal Standards Applicable under 18 U.S.C. 2340-2340A |publisher=US Department of Justice, Office of Legal Counsel |date=2004-12-30 |accessdate=2009-03-02}}  Withdrawn.{{cite web |url= |title=Withdrawal of Office of Legal Counsel CIA Interrogation Opinions |publisher=US Department of Justice, Office of Legal Counsel |date=2009-04-15 |accessdate=2009-09-28}}  “In connection with the consideration of these opinions for possible public release, the Office has reviewed them and has decided to withdraw them.  They no longer represent the views of the Office of Legal Counsel.”
  • [ August 1, 2002 letter] for Alberto Gonzales, “regarding the views of our Office concerning the legality, under international law, of interrogation methods to be used on captured al Qaeda operatives”.
  • [ August 1, 2002 Memorandum] for John Rizzo (Acting General Counsel of the [[Central Intelligence Agency|CIA]]), “Interrogation of al Qaeda Operative”.  Addresses the legality of particular interrogation techniques that the CIA wished to employ against [[Abu Zubaydah]].
  • October 11, 2002 Memorandum (”OLC 129″) for John Ashcroft, Attorney General, 9pp, concerning the legality of certain communications intelligence activities.  The Inspector General’s Report says it “reiterated the same basic analysis contained in Yoo’s November 2, 2001, memorandum in support of the legality of the [surveillance program].”{{cite web |url= |title=Sunshine Week: October 11, 2002 NSA Surveillance Memo |publisher=[[Electronic Frontier Foundation]] |date=2009-03-19 |accessdate=2009-03-19 }}
  • [ October 23, 2002 Memorandum] signed by Jay S. Bybee, “Authority of the President Under Domestic and International Law to Use Military Force against Iraq”.  “The President possesses constitutional authority to use military force against Iraq to protect United States national interests. This independent constitutional authority is supplemented by congressional authorization in the form of the Authorization for Use of Military Force Against Iraq Resolution.  Using force against Iraq would be consistent with international law because it would be authorized by the United Nations Security Council or would be justified as anticipatory self-defense.”  Anticipatory self-defense means attacking someone before they attack you.
  • [ November 27, 2002 Memorandum], “Counter-Resistance Techniques” (signed by William J. Haynes II and signed “Approved” by Donald Rumsfeld).  Alleged to be reviewed and approved by Yoo.  Recommends that Secretary of Defense Rumsfeld approve a range of aggressive interrogation techniques that are not permitted by the military interrogation field manual.
  • [ December 7, 2002 Memorandum] Opinion for the Counsel to the Vice President, signed by John Yoo, “Whether False Statements or Omissions in Iraq’s Weapons of Mass Destruction Declaration would constitute a ‘Further Material Breach’ under U.N. Security Council Resolution 1441.”  He opines that they would.
  • February 7, 2003 Memorandum to William J. Haynes II, “American Bar Association’s Task Force on Treatment of Enemy Combatants Report”.
  • [ March 14, 2003 Memorandum] for William J. Haynes II, “Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States” (signed by John C. Yoo). Parts of this memorandum are preparation for a criminal defense for hypothetical U.S. government defendants against hypothetical charges of crimes of torture and [[crimes against humanity]].{{cite web |title=Yoo Memorandum, Office of Legal Counsel, March 14, 2003, pp.74 - 81 |url= |format=PDF }} Repudiated.