In 2004, the Administration released the first memo that was written by John Yoo and signed by Jay S. Bybee. This memo was re-released recently as part of the "torture memos" that were written by the Department of Justice defining what constitutes torture as well as delineating other issues for the executive branch. Three of these attorneys, including the two in this report--Jay S. Bybee and John Yoo--are under investigation for issuing legal opinions in direct violation of the Geneva Conventions, the U.S. Military Code of Justice and the Constitution of the United States.

The general consensus is that they wrote what the Executive Branch wanted them to write rather than what the law stated.



Jay S. Bybee, whose 2002 memos were released last month, has defended his guidance on interrogating terrorism suspects as “a good-faith analysis of the law.”

Mr. Bybee, who oversaw the office, issues a memo, released by the Obama Administration, that says the C.I.A. has the authority to use harsh interrogation techniques. The memo, drafted by Deputy Assistant Attorney General John Yoo, argues that physical torture “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

Mr. Bybee is now a federal judge for the U.S. Court of Appeals of the 9th Circuit.


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The Justice Department today[2004] released John Yoo's 2003 torture memo to Congress. This is the infamous memo that the Bush Administration relied on in justifying it's "harsh interrogation techniques" on prisoners overseas. This was the memo that was in force when the Abu Ghraib detainees were subjected to cruel treatment and torture.

Part One of the memo is here, and Part Two is here (pdf.)

Shorter version: Yoo wrote the Constitution is not in play.

In the March 14, 2003 memo, Yoo says the Constitution was not in play with regard to the interrogations because the Fifth Amendment (which provides for due process of law) and the Eighth Amendment (which prevents the government from employing cruel and usual punishment) does "not extend to alien enemy combatants held abroad.":

The memo goes on to explain that federal criminal statutes regarding assault and other crimes against the body don't apply to authorized military interrogations overseas and that statutes that do apply to the conduct of U.S. officials abroad pertaining to war crimes and torture establish a limited obligation on the part of interrogators to refrain from bodily harm.

The memo also says the Geneva Conventions don't apply to al-Qaida and the Taliban. [More...]

Yoo prepared the memo for William Haynes,"then the Pentagon's general counsel and another key player in the administration's legal strategy." Haynes left the job in Februarythere could be no acquittals in the military commission trials. Bush nominated him for a federal appeals court judgeship. He wasn't confirmed. after it was disclosed he told a military prosecutor

Yoo is now a law professor at University of California at Berkeley.

Sen. Patrick Leahy said of the release in 2004:

The memo they have declassified today reflects the expansive view of executive power that has been the hallmark of this administration. It is no wonder that this memo, like the now-infamous “Bybee memo”, could not withstand scrutiny and had to be withdrawn. Like the “Bybee memo”, this memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country’s status as a beacon of human rights around the world.

"I've heard him [Bybee] express regret at the contents of the memo," said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as "piling on." "I've heard him express regret that the memo was misused. I've heard him express regret at the lack of context -- of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety."

That notoriety worsened this week as the documents -- detailing the acceptable application of waterboarding, "walling," sleep deprivation and other procedures the Bush administration called "enhanced interrogation methods" -- prompted calls from human rights advocates and other critics for criminal investigations of the government lawyers who generated them.

Of the three former Justice Department lawyers associated with the memos, the public's attention has focused particularly harshly on Bybee because of his position as a sitting federal judge; John C. Yoo, who largely wrote the Bybee memo, returned to academic life, and Steven G. Bradbury, who signed three memos, resumed private practice at the end of the Bush administration.

Democratic lawmakers, human rights groups and others have called for Congress to impeach Bybee, complaining that his 2003 Senate confirmation came more than a year before his role in the memos was known. "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," said Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), adding that "the decent and honorable thing for him to do would be to resign."

Democrats blocked the nomination of former Defense Department general counsel William J. Haynes II to the Court of Appeals for the 4th Circuit because of his role in supporting aggressive interrogations of military detainees. Haynes withdrew his nomination in 2007.

The Justice Department withdrew the memos in the closing days of the Bush administration, and as its Office of Professional Responsibility investigates their origin -- and Congress, the American Bar Association and the United Nations mull inquiries -- Mr. Bybee is represented by Maureen E. Mahoney, a star litigator at Latham & Watkins.

The aura of regret described by Bybee's friends and associates stands in contrast to the demeanor of Mr. Yoo, who served under Bybee and has maintained both a public profile and the fearless confidence that informed the memos. "Al-Qaeda in the months after 9/11 was going to carry out follow-on attacks on our country and its citizens," Yoo said Tuesday at a conference at Chapman University, the Orange, Calif., campus where he is teaching this spring.

Mr. Bybee left the issue behind in 2003, returning to the gated suburban Las Vegas subdivision where he lives with his wife and children. He has said nothing publicly about the documents, a silence associates attributed to the restrictions on a sitting appellate judge, the possible advice of counsel and his own manner.