This is a compilation of the relevant OLC Memos for 2001, 2002, and 2003 [John Yoo‘s Tenure]. The uncolored ones were made public by the DoJ. The blue ones were obtained by the Freedom of Information Act. The red ones are still secret. The Memos with lines through the dates were repudiated by OLC Memos written by Steve Bradbury in October 6, 2008 and January 15, 2009.
2001
| September 25, 2001 [John Yoo] warpowers925 |
| THE PRESIDENT’S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM |
| The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. |
memoforeignsurveillanceact09252001.pdf |
| Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the “Purpose” Standard for Searches |
| Concludes that changing “purpose” to “significant purpose” would not violate the Fourth Amendment. The memo is criticized and partly repudiated in Steven Bradbury’s 1/15/09 memo re status of certain OLC opinions.
|
| October 4, 2001 [John Yoo] |
| Legal standards governing the use of certain intelligence techniques |
| Still secret. Subject of litigation in ACLU v. DOJ, 06-cv-0214 (D.D.C.), and existence disclosed in a 10/18/07 declaration filed by Steven Bradbury in that case
|
memomilitaryforcecombatus10232001.pdf |
| Authority for Use of Military Force to Combat Terrorist Activities Within the United States. |
| Concludes that, “the President has both constitutional and statutory authority to use the armed forces in military operations, against terrorists, within the United States. We believe that these operations generally would not be subject to the constraints of the Fourth Amendment . . . .” The memo is criticized and partly repudiated in Steven Bradbury’s 10/6/08 memo.
|
| November 2, 2001 [John Yoo] |
| Legality of communication intelligence activities |
| Still secret. Subject of litigation in ACLU v. DOJ, 06-cv-0214 (D.D.C.), and existence disclosed in a 10/18/07 declaration filed by Steven Bradbury in that case.
|
| November 5, 2001. [John Yoo] 25.htm |
| AUTHORITY OF THE DEPUTY ATTORNEY GENERAL UNDER EXECUTIVE ORDER 12333. |
| The Deputy Attorney General has authority to approve searches for intelligence purposes that are conducted under section 2.5 of Executive Order 12333.
|
| November 6, 2001 [Patrick Philbin] pub-millcommfinal.pdf |
| LEGALITY OF THE USE OF MILITARY COMMISSIONS TO TRY TERRORISTS |
| 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.
|
memoabmtreaty11152001.pdf |
| Memorandum Regarding Authority of the President to Suspend Certain Provisions of the ABM Treaty |
| This is to provide you with our views on the question whether the President has the constitutional authority to suspend certain articles of the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, U.S. – U.S.S.R., 23 U.S.T. 3435 (the "ABM Treaty") insofar as is necessary to allow the development and testing of missile defenses. You have asked us to consider two cases: first, suspension of the relevant articles by mutual consent of both the United States and the Russian Federation; second, unilateral suspension by the United States. We conclude that the President has the constitutional authority to suspend the articles in either case.
|
| November 20, 2001 [John Yoo, Robert Delahunty] |
| War Crimes Act, Hague Convention, Geneva Conventions, federal criminal code, and detainee treatment |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| December 21, 2001 [John Yoo] |
| Possible Criminal Charges Against American Citizen Who Was a Member of the Al Qaeda Terrorist Organization or the Taliban Militia |
| Still secret. Subject of FOIA request filed by ACLU on 12/09/08
Probably discusses the applicability of 10 U.S.C. § 802(a)(11) during undeclared wars. The statute subjects persons serving with, employed by, or accompanying the Armed Forces to the Uniform Code of Military Justice. The memo is cited in John Yoo’s 03/14/03 memo concerning military interrogation of alien unlawful combatants. |
| December 28, 2001 [John Yoo, Patrick Philbin] |
| Possible habeas jurisdiction over aliens held in Guantanamo Bay, Cuba |
| Still secret. Subject of FOIA request filed by ACLU on 12/09/08.
The memo is cited in John Yoo’s 03/13/02 memo concerning the President’s power to transfer prisoners to other nations. |
2002
| January 09, 2002 [Patrick Philbin] |
| Attorney General’s review of the legality of the President’s order authorizing the Terrorist Surveillance Program |
| Still secret. Subject of litigation in ACLU v. DOJ, 06-cv-0214 (D.D.C.), and existence disclosed in a 10/18/07 declaration filed by Steven Bradbury in that case.
|
| January 11, 2002 [Jay Bybee] |
| Authority of OLC, DOJ, AG, and DOS in the interpretation of treaties and international law |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| January 11, 2002 [John Yoo, Robert Delahunty] |
| Geneva Conventions |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| January 14, 2002 [John Yoo, Robert Delahunty] |
| Prosecution for Conduct Against al Qaeda and Taliban Members under the War Crimes Act |
| Still secret. Subject of FOIA request filed by ACLU on 12/09/08.
Asserts that the Justice Department’s interpretation of the War Crimes Act precludes prosecution under the statute for conduct against al Qaeda and Taliban members. The memo is cited in John Yoo’s 03/14/03 memo concerning military interrogation of alien unlawful combatants. |
bybee12202mem.pdf |
| Application of Treaties and Laws to al Qaeda and Taliban Detainees ("Treaties and Laws Memorandum") |
| Addresses treatment of detainees captured in Afghanistan with respect to long-term detention at the U.S. navy base at Guantanamo Bay and trial by military commissions. Concludes that the Geneva Conventions do not apply to al Qaeda members. Also concludes that the President has authority to deny the Taliban militia POW status. Finds that because customary international law constitutes neither federal law nor a treaty recognized under the Supremacy Clause, CIL does not bind the President or restrict the actions of the U.S. military.
|
| January 24, 2002 [John Yoo] |
| Geneva Conventions and prisoners of war |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| January 24, 2002 [John Yoo] |
| Application of international law to the United States |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| January 26, 2002 [Jay Bybee] |
| Geneva Conventions |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| February 1, 2002 [James Ho] |
| Possible interpretation of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War |
| Still secret. Subject of FOIA request filed by ACLU on 12/09/08.
Probably interprets the scope of prohibited conduct under Common Article 3 and the meaning of phrases such as “outrages upon personal dignity” and “humiliating and degrading treatment.” The memos is cited in John Yoo’s 03/14/03 memo concerning military interrogation of alien unlawful combatants. |
| February 7, 2002 [George W. Bush] bush_memo_20020207_ed.pdf |
| Humane Treatment of al Qaeda and Taliban Detainees |
| In this memo, the President concludes that (1) none of the provisions of the Geneva Conventions apply to the conflict with al Qaeda, (2) the President has authority to suspend obligations under the Geneva Conventions with regard to Afghanistan, (3) Common Article 3 does not apply to al Qaeda or Taliban detainees, and (4) Taliban and al Qaeda detainees do not qualify as prisoners of war.
|
| February 7, 2002 [Jay Bybee] pub-artc4potusdetermination.pdf |
| STATUS OF TALIBAN FORCES UNDER ARTICLE 4 OF THE THIRD GENEVA CONVENTION OF 1949 |
| 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.
|
| FISA |
| Still secret. Subject of FOIA request filed by ACLU on 12/09/08.
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. The memo is criticized and partly repudiated in Steven Bradbury’s 1/15/09 memo re status of certain OLC opinions. |
| March 5, 2002 [Joan Larsen, Gregory Jocob] |
| Availability of habeas corpus relief to detainees |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 S.D.N.Y.) and existence disclosed 06/07/07 declaration filed by Steven Bradbury in that case.
|
memorandum03132002.pdf |
| President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations |
| Concludes that, “the President has plenary constitutional authority, as the commander in chief, to transfer such individuals who are held and captured outside the United States to the control of another country.” The memo is criticized and partly repudiated in Steven Bradbury’s 1/15/09 memo re status of certain OLC opinions.
|
| March 28, 2002 [John Yoo] |
| March 22, 2002 DOS memorandum |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
memojusticeauthorizationact0482002.pdf |
| Swift Justice Authorization Act |
| Concludes that Congress cannot interfere with the President’s exercise of his authority as Commander-in- Chief to control the conduct of operations during war, including his authority to promulgate rules to regulate military commissions. The memo is criticized and partly repudiated in Steven Bradbury’s 1/15/09 memo re status of certain OLC opinions.
|
| June 8, 2002 [Jay Bybee] memomilitarydetention06082002.pdf |
| Determination of Enemy Belligerency and Military Detention |
| Concludes that “the military has the legal authority to detain [Jose Padilla] as a prisoner captured during an international armed conflict,” and that the Posse Comitatus Act poses no bar.
|
| June 13, 2002 [Jay Bybee] |
| Legal Constraints to Boarding and Searching Foreign Vessels on the High Seas |
| –
|
memodetentionuscitizens06272002.pdf |
| Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens |
| Concludes that the “the President’s authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief ” and that the Non-Detention Act cannot interfere with that authority. The memo is criticized and partly repudiated in Steven Bradbury’s 1/15/09 memo re status of certain OLC opinions.
|
| July 22, 2002 [John Yoo] |
| Applicability of the Convention Against Torture |
| Still secret. Subject of FOIA request filed by ACLU on 12/09/08.
Concludes that the first fifteen articles of the Convention Against Torture are non-self executing and place no affirmative obligations on the Executive Branch. Cited in John Yoo’s 03/14/03 memo concerning military interrogation of alien unlawful combatants. |
dojinterrogationmemo20020801.pdf |
| Standards of Conduct For Interrogation Under 18 U.S.C. §§ 2340-2340A |
| Concludes that conduct rises to the level of torture under domestic law and the Convention Against Torture only if it causes pain akin to pain associated with organ failure, impairment of bodily function and death. Prosecution for such acts may be barred where it infringes upon the President’s Commander-in-Chief powers to conduct war and necessity and self-defense may justify interrogation in violation of § 2340A. The memo is criticized and partly repudiated in Steven Bradbury’s 1/15/09 memo re status of certain OLC opinions.
|
| August 1, 2002 [John Yoo] bybee80102ltr.html |
| Letter regarding “the views of our Office concerning the legality, under international law, of interrogation methods to be used on captured al Qaeda operatives” |
| Concludes that interrogation methods that comply with 18 U.S.C.§2340- 2340A do not violate international obligations under the Convention Against Torture based on the U.S. reservation requiring specific intent. Additionally, the methods could not fall under the jurisdiction of the International Criminal Court because (1) "a state cannot be bound by treaties to which it has not consented;" and (2) even if the ICC could act, the methods do not fall within the Rome Statute’s crimes since they are not a "widespread and systematic" attack on civilians and neither al Qaeda members or Taliban soldiers qualify as prisoners of war.
|
| August 1, 2002 [Jay Bybee] [Bybee Two] olc_08012002_bybee.pdf |
| Interrogation of al Qaeda Operative |
| Concludes that the CIA’s proposed interrogation plan for Abu Zubaydah — which contemplates methods including “insects placed in a confinement box” and “the waterboard” — does not violate the torture statute.
|
| October 11, 2002 [John Yoo] |
| Legality of certain communications intelligence activities |
| Still secret. Subject of litigation in ACLU v. DOJ, 06-cv-0214 (D.D.C.), and existence disclosed in a 10/18/07 declaration filed by Steven Bradbury in that case.
|
| October 23, 2002 [John Yoo] iraq-opinion-final.pdf |
| 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. |
| November 8, 2002 [John Yoo] iraq-unscr-final.pdf |
| EFFECT OF A RECENT UNITED NATIONS SECURITY COUNCIL RESOLUTION ON THE AUTHORITY OF THE PRESIDENT UNDER INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ |
| United Nations Security Council Resolution 1441 does not alter the legal authority, under international law, granted by existing U.N. Security Council resolutions to use force against Iraq.
|
| December 7, 2002 [John Yoo] materialbreach.pdf |
| 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 |
| False statements or omissions in Iraq’s weapons of mass destruction declaration would by themselves constitute a "further material breach" of United Nations Security Counsel Resolution 1441.
|
2003
| January 28, 2003 [George Tenet] |
| Guidelines on Interrogations Conducted Pursuant to the [REDACTED] |
| Still secret. Referenced in the 05/10/05 Bradbury memo [individual use memo] which was released to the ACLU on 04/16/09.
|
| January 28, 2003 [George Tenet] |
| Guidelines on Confinement Conditions for CIA Detainees |
| Still secret. Referenced in the 05/10/05 Bradbury memo [individual use memo] which was released to the ACLU on 04/16/09.
|
| February 7, 2003 [John Yoo] |
| American Bar Association’s Task Force on Treatment of Enemy Combatants Report |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| February 25, 2003 [Deputy Assistant Attorney General, OLC] |
| Use of information collected in course of classified foreign intelligence activities |
| Still secret. Subject of litigation in ACLU v. DOJ, 06-cv-0214 (D.D.C.), and existence disclosed in a 10/18/07 declaration filed by Steven Bradbury in that case.
|
| March 14, 2003 [Jack Goldsmith] |
| Classified foreign intelligence activities] |
| Still secret. Subject of litigation in ACLU v. DOJ, 06-cv-0214 (D.D.C.), and existence disclosed in a 10/18/07 declaration filed by Steven Bradbury in that case.
|
34745res20030314.html |
| Military Interrogation of Alien Unlawful Combatants Held Outside the United States |
| Concludes that the Fifth Amendment’s due process protections and the Eight Amendment’s prohibition against cruel and unusual punishment do not apply to enemy combatants held abroad and that federal criminal laws of general applicability do not apply to authorized interrogations of enemy combatants. Also asserts that customary international law can be overridden by the President at his discretion. The memo is criticized and partly repudiated in Steven Bradbury’s 1/15/09 memo re status of certain OLC opinions.
|
| May 30, 2003 [Deputy Assistant Attorney General, OLC] |
| – |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| June 2003 [White House] |
| Interrogation of prisoners by CIA |
| Still secret. Subject of FOIA request filed by ACLU on 12/09/08.
Existence reported by Washington Post. Joby Warrick, CIA Tactics Endorsed in Secret Memos, Wash. Post, Oct. 15, 2008. |
| September 8, 2003 [Sheldon Bradshaw] |
| Draft legislation |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| October 31, 2003 [Nicholas Rosenkranz] |
| Geneva Conventions |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|
| November 18, 2003 [Jack Goldsmith, Robert Delahunty] |
| Legal advice provided to DOD re: application of Geneva Conventions |
| Still secret. Subject of litigation in ACLU v. DOD, 04-cv-4151 (S.D.N.Y.) and existence disclosed in a 06/07/07 declaration filed by Steven Bradbury in that case.
|