Lawyers’ Statement on Bush Administration’s Torture Memos

TO: President George W. Bush Vice President Richard B. Cheney Secretary of Defense Donald Rumsfeld Attorney General John Ashcroft Members of Congress

his is a statement on the memoranda, prepared by the White House, Department of Justice, and Department of T Defense, concerning the war powers of the President, torture, the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, and related matters. The Administration’s memoranda, dated January 9, 2002, January 25, 2002, August 1, 2002 and April 4, 2003, ignore and misinterpret the U.S. Constitution and laws, interna- tional treaties and rules of international law. The lawyers who approved and signed these memoranda have not met their high obligation to defend the Constitution.

Americans have faith that our government respects the ᮣ Assert the permissibility of the use of mind-alter- Constitution, the Bill of Rights, laws passed by Congress, ing drugs that do not “disrupt profoundly the and treaties which the United States has signed. We have sense of personality.” According to the memoran- always looked to lawyers to protect these rights. Yet, the dum: “By requiring that the procedures and the most senior lawyers in the Department of Justice, the drugs create a profound disruption, the statute White House, the Department of Defense, and the Vice requires more than that the acts ‘forcibly separate’ President’s office have sought to justify actions that violate or ‘rend’ the senses or personality. Those acts the most basic rights of all human beings. must penetrate to the core of an individual’s abil- ity to perceive the world around him, The memoranda prepared and approved by these lawyers: substantially interfering with his cognitive abili- ties, or fundamentally alter his personality.” (DOJ ᮣ Claim a power for the President as Commander- memo, August 1, 2002). in-Chief to choose to ignore laws, treaties and the Constitution regarding the treatment of pris- ᮣ Advise the President that despite concerns raised oners. (DOD memo, April 4, 2003). by the Department of State, the U.S. is exempt from compliance with the Geneva Convention on ᮣ Advise the President that he has the authority to the Treatment of Prisoners of War with respect to approve the infliction of extreme physical and the war in Afghanistan. (See White House mental distress by defining “torture” so narrowly Counsel Memo, January 25, 2002). This as to exclude all but treatment that is “equivalent argument ignores that the treaty, by its own in intensity to the pain accompanying serious terms, governs all conflicts “at any time and in physical injury, such as organ failure, impairment any place whatsoever,” and protects even unlaw- of bodily function, or even death.” According to ful combatants who do not qualify as prisoners of the Administration’s memoranda, mental pain or war from “humiliating and degrading treatment” suffering does not amount to torture unless “it and “mutilation, cruel treatment and torture.” results in significant psychological harm of signif- (Geneva Convention Relative to the Treatment icant duration, e.g., lasting for months or even of Prisoners of War, Aug. 12, 1949, art. 3 para. years.” (DOJ memo, August 1, 2002). This 1). As stated by Attorney General John Ashcroft, memo was reportedly prepared in order to provide the purpose of claiming an exemption from the legal bases and defenses for harsh methods already Geneva Convention was to provide American used by the CIA, in the event that CIA agents intelligence, military and law enforcement were prosecuted for violation of the federal anti- personnel with a defense to charges relating torture statutes. to “field conduct, detention conduct or interrogation of detainees” that is prohibited provisions of the Constitution itself. One of the surpris- by the Geneva Convention. (Letter to the ing features of these legal memoranda is their failure to President, Feb. 1, 2002). acknowledge the numerous sources of law that contradict their own positions, such as the Steel Seizure Case, ᮣ Contrived defenses by distorting definitions of Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 “necessity,” “self-defense,” and “superior orders” (1952). The unprecedented and under-analyzed claim in order to avoid independent responsibility for that the Executive Branch is a law unto itself is incompat- actions that would violate the U.S. Army Field ible with the rule of law and the principle that no one is Manual and relevant statutory and case law. above the law. (DOJ memo, August 1, 2002; DOD memo, April 4, 2003). The lawyers who prepared and approved these memoranda have failed to meet their professional obligations. A lawyer These memoranda and others like them seek to circum- has a duty both to ask his or her client what the client wants vent long established and universally acknowledged to do and assist the client in accomplishing his or her law- principles of law and common decency. The memoran- ful objectives. But the lawyer has a simultaneous duty, as da approve practices that the United States itself an officer of the court and as a citizen, to uphold the law. condemns in its annual Human Rights Report. No mat- Enforcement of all of our laws depends on lawyers telling ter how the memoranda seek to redefine it, torture clients not only what they can do but also what they can not remains torture. The belated repudiation of the August do. This duty binds all lawyers and especially lawyers in 2002 memorandum (which had been signed by Jay S. government service. Their ultimate client is not the Bybee, then Assistant Attorney General, Office of Legal President or the Central Intelligence Agency, or any other Counsel and now a Federal Judge) is welcome, but the department of government but the American people. repudiation does not undo the abuses that this memo- When representing all Americans, government lawyers randum may have sanctioned or encouraged during the must adhere to the Constitution and the rule of law. In fact, nearly two years that it was in effect. The subsequent government lawyers take the following oath: “I . . . do repudiation, coming after public outcry, confirms its solemnly swear (or affirm) that I will support and defend original lawless character. the Constitution of the United States…”

Moreover, the claim that the President’s authority as Conscientious leaders of the Department of Justice and Commander-in-Chief allows him to ignore laws, treaties, lawyers in other governmental agencies have always striv- and the Constitution relevant to human rights, and there- en to meet that standard. But some of those currently by to shield those acting on his authority who violate occupying senior legal positions in this Administration in domestic and international law by their interrogation this instance have abandoned this standard. They have methods and other behavior, directly contradicts several counseled individuals to ignore the law and offered argu- major Supreme Court decisions, numerous statutes passed ments to minimize their exposure to sanction or liability by Congress and signed by Presidents, and specific for doing so.

While the facts cited above are established, much, however, is still not known, for the Administration refuses to produce other memoranda and documents relating to treatment of prisoners and detainees. We therefore:

(1) Call upon the Administration to release all memoranda relating to such treatment and on Congress to require their production if they are not released; and

(2) Call for an appropriate inquiry into how and why such memoranda were prepared and by whom they were approved, and whether there is any connection between the mem- oranda and the shameful abuses that have been exposed and are being investigated at Abu Ghraib prison in Baghdad and at other military prisons.

Sincerely,

[The undersigned]

Bruce Ackerman Douglass W. Cassel, Jr. Lawrence Fox Sterling Professor of Law and Director of Center for Partner, Drinker Biddle & Reath Political Science, Yale International Human Rights and LLP University Clinical Professor, Northwestern Monroe H. Freedman Mark D. Agrast University School of Law Howard Lichenstein Senior Vice President for William Coblentz Distinguished Professor of Legal Domestic Policy, Center for David Cole Ethics, Hofstra University American Progress Professor of Law, Georgetown School of Law Anthony G. Amsterdam University Leon Friedman Judge Edward M. Weinfeld Michael A. Cooper Joseph Kushner Distinguished Professor of Law, New York Past President, Association of Professor of Civil Liberties Law, Hofstra University School of University the Bar of the City of New York Law Phillip Anderson Edward Correia Past President, American Bar former Special Counsel to Michael S. Frisch Association President Clinton on Civil Rights Ethics Counsel and Adjunct Professor of Law, Georgetown Nan Aron Joseph W. Cotchett President, Alliance for Justice University Law Center Hon. Mario Cuomo Hon. John J. Gibbons Frank Askin former Governor of New York Distinguished Professor, Rutgers retired Chief Judge, United States Court of Appeals for the Law School John C. Curtin, Jr. Past President, American Bar Third Circuit Jack M. Balkin Association Knight Professor of Lawrence S. Goldman Constitutional Law and the First Dennis E. Curtis Immediate Past President, Amendment, Yale Law School Clinical Professor of Law National Association of Criminal Emeritus, Yale Law School Defense Attorneys Martha Barnett Past President, American Bar Talbot “Sandy” D’Alemberte Robert W. Gordon Chancellor Kent Professor of Association Past President, American Bar Association Law and Professor of History, David A. Barrett Yale University Partner, Boies Schiller & James Danaher Flexner LLP Palo Alto, CA Scott Greathead Joan Z. “Jodie” Bernstein Norman Dorsen Patricia M. Gruber former Director, Bureau of Stokes Professor of Law and Jennifer Harbury Consumer Protection Counselor to the President, New President, Unitarian York University Richard I. Beattie Universalist Service Association John W. Douglas Mark I. Harrison Hon. Anthony C. Beilenson Past President, District of former Member of the United Past President, State Bar of Columbia Bar States House of Representatives Arizona Father Robert F. Drinan Robert E. Hirshon Barbara Black Professor of Law, Georgetown Professor of Law and former Past President, American Bar University and former Member Association Dean, Columbia Law School of the U.S. House of Hon. Birch Bayh Representatives Nancy Hollander Past President, National former United States Senator Peter Edelman Association of Criminal Defense John Charles Boger Professor of Law, Georgetown Lawyers Professor of Law, University of University Scott Horton North Carolina at Chapel Hill Hon. Don Edwards School of Law President, International League former Member of the United for Human Rights Brooksley Born States House of Representatives Zona Hostetler former Chairperson of U.S. Eugene R. Fidell Commodity Futures Trading Feldesman Tucker Leifer Fidell Hon. Shirley Hufstedler Commission, Clinton LLP former Circuit Judge, United Administration States Court of Appeals for the Hon. Lee Fisher Ninth Circuit Elizabeth Cabraser former Attorney General of Ohio Simon Lazarus George F. Carpinello Public Policy Counsel, National Senior Citizens’ Law Center

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