March 28

March 2003: DoJ Legal Counsel Memo approves severe Guantanamo interrogation tactics

The March 14, 2003, Department of Justice Office of Legal Counsel memorandum was written by attorney John Yoo for the Pentagon General Counsel William “Jim” Haynes. The memo lays out a defense against criminal prosecution arguing that as Commander in Chief, the President has the sole authority to determine whether federal criminal laws apply to “properly-authorized” military interrogations of enemy combatants. The memo then argues (in part) that, “To violate section 2340A, the statute requires that severe pain and suffering be inflicted with specific intents.”

The memorandum was primarily geared toward interrogation of detainees held at Guantanamo Base. It lists the “non-standard interrogation techniques” that the military commander of Guantanamo intelligence division requested permission to use. These were classified in three ascending categories of abuse. Yoo argues that it is permissible to use mind-altering drugs in interrogations. They are prohibited only if the drugs “disrupt profoundly the senses or personality.” Yoo provides his draconian interpretation of the statute:

“For drugs or procedures to rise to the level of “disrupt[ing] profoundly the senses or personality,” they must produce an extreme effect.” “The word ‘disrupt’ is defined as ‘to break asunder; to part forcibly; rend,” imbuing the verb with a connotation of violence….Moreover, disruption of the senses or personality alone is insufficient to fall within the scope of this subsection; instead, that disruption must be profound…By requiring that the procedures and the drugs create a profound disruption, the statute requires more than that the acts ‘forcibly separate’ or ‘rend’ the senses or personality. Those acts must penetrate to the core of an individual’s ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality.”

“Such an effect might be seen in drug-induced dementia…onset of psychotic symptoms…We think that pushing someone to the brink of suicide, particularly where the person comes from a culture with strong taboos against suicide, and it is evidenced by acts of self-mutilation, would be a sufficient disruption of the personality to constitute a ‘profound disruption.’” (U.S. DoJ OLC Memo for William Haynes, General Counsel of the DoD. Military Interrogation of Unlawful Combatants Held Outside the U.S., March 14, 2003, p. 42-44)


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