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| March 13,2002 |
| Memorandum for William J. Haynes, II General Counsel, Department of Defense |
| Re: The President’s power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations |
| You have asked for our Office’s views on the laws applicable to the transfer of members of the Taliban militia, al Qaeda, or other terrorist organizations, who have come under the control of the United States armed forces, to other countries. We conclude that the President has plenary constitutional authority, as the Commander in Chief, to transfer such individuals who are captured and held outside the United States to the control of another country. Individuals who are detained within the United States, however, may be subject to a more complicated set of rules established by both treaty and statute. |
| [35 pages of blah, blah, blah] |
| Conclusion |
| 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 nor the 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. If detainees in the future are held within the territory of the United States, however, a more complex set of rules would apply. |
| Please let us know if we can provide any further assistance. |
Is this crazy old man ever going to stop blogging about the OLC Memos? He doesn’t know how to stop yet. This one is a show stopper.
This Jay Bybee Memo is about moving captives overseas to the custody of other countries. What is it about this question that requires thirty five pages to say? It’s actually pretty interesting. The first section [A. Presidential Authority Under The Constitution] goes on and on about moving P.O.W.s to other countries starting with the Revolutionary War and moving War by War to the present. That takes about 20 pages. Then there’s a paragraph blurb justifying moving non-P.O.W.s to other countries. What’s all this about?
C. Limitations Imposed on the Transfer Of Detainees By the Torture ConventionIn addition to GPW, the Torture Convention establishes certain restrictions on the ability of state parties to transfer individuals within its control. The Torture Convention prohibits contracting parties from transferring individuals who are in their custody within their territory to the control of foreign governments that are more likely than not to torture them. Article 3 of the Torture Convention specifies that "[n]o State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."
I read it twice. It has been repudiated, but after the fact. Even Steven Bradbury balks hard on this one in his January 15, 2009 Memo. If that weren’t enough, this one may even top it:
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| March 14,2003 |
| Memorandum for William J. Haynes, II General Counsel, Department of Defense |
| Re: Military Interrogation ofAlien Unlawful Combatants Held Outside the United States |
|
You have asked our Office to examine the legal standards governing military interrogations of alien unlawful combatants held outside the United States. You have requested that we examine both· domestic and international law that might be applicable to the conduct of those interrogations.
In Part I, we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to· alien enemy combatants held abroad. In Part IT, we examine federal criminal law. We explain that several canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability do not apply to properly~authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution’s grant of the Commander in Chiefpower solely to the President. Although we do not believe. that these laws would apply· to authorized military interrogations, we outline the various federal crimes that apply in the special maritime and territorial jurisdiction of the United States: assault, 18 U.S.C. § 113 (2000); maiming, 18 U.S.C. § 114 (2000); and interstate’ stalking, 18 U.S.C. § 2261A(2000). In Part IT.C., we address relevant criminal prohibitions that apply to conduct outside the jurisdiction of the United States: war crimes, 18 U.S.C. § 2441 (2000); and torture, 18′ U.S.C. § 2340A (2000 & West Supp. 2002). In Part III, we examine the international law applicable to the conduct ofinterrogations. First, we examine the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr. 18, 1988,1465 D.N.T.S. 113 ("CAT") and conclude that U.S. reservations, understandings, and declarations ensure that our international obligations mirror the standards of 18 U.S.C. § 2340A. Second, we address the U.S. obligation under CAT to undertake to preventthecoromission of"cruel,inhuman,ordegradingtreatmentorpunishment." We conclude that based on its reservation, the United States’ obligation extends only to conduct that is "cruel and unusual" within the meaning of the Eighth Amendment or otherwise "shocks the conscience" under the Due Process Clauses of the Fifth and Fourteenth Amendments. Third, we examine the applicability of customary international law. We conclude that as an expression of state practice, customary intemationallaw cannot impose a standard that differs from U.S. obligations.under CAT, a recent multilateral treaty on the same sUbject. In any event, our previous opinions make clear that customary international law is not federal law and that the President is free to override it at his discretion. In Part IV, we discuss defenses to an allegation that an interrogation method might violate any of the various criminal prohibitions discussed in Part ll. We believe that necessity or self~defense could provide defenses to a prosecution.
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| [81 pages of blah, blah, blah] |
| Conclusion |
|
For the foregoing reasons, we conclude that the Fifth and Eighth Amendments do not extend to alien enemy combatants held abroad. Moreover, we conclude that different canons of construction indicate that generally applicable criminal laws do not apply to the military interrogation of alien unlawful combatants held abroad. Were it otherwise, the application of these statutes to the interrogation of enemy combatants undertaken by military personnel would conflict with the ‘President’s Commander-in-Chiefpower.
We further conclude that CAT defines U.S. international law obligations with respeCt to .torture and other cruel, inhuman, or degrading treatment or punishment. The standard of conduct regarding torture is thesame as that wh:ich is found in the torture statute, 18 U.S.C. §§·.234D2340A. Moreover, the scope ofU.S.’obligations under CATregarding cruel, inhuman, or degrading treatment or punishment is limited to conduct prohibited by the Eighth, Fifth and Fourteenth Amendments. Customary intemationallaw does not supply any additional standards. Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability.
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| Please let us know if we can provide any further assistance. |
John Yoo takes 81 pages to reach his heinous conclusions [Jay Bybee did his in 35 pages]. I won’t bother to go through his tortured illogic. This one is simply the bottom of the barrel and grounds for something. I don’t know what – but something.
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