JIM LEHRER: And finally tonight, how the Bush administration justified harsh interrogation techniques after 9/11. Judy Woodruff has that story.
JUDY WOODRUFF: The Justice Department yesterday released a much-discussed 2003 legal opinion on the military’s use of excessive interrogation tactics against al-Qaida and Taliban detainees.
The memo was authored by John Yoo, then a deputy in the department’s Office of Legal Counsel. Among his assertions, Yoo wrote, quote, “We conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad.”
The Fifth Amendment guarantees the right of due process of law. The Eighth Amendment prohibits cruel and unusual punishment.
Yoo goes on to say that, if a government official were prosecuted for allegedly using torture, quote, “We believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
Memo vastly expands executive power
JUDY WOODRUFF: Well, for more on the memo and the role it played in Bush administration policy, we turn to New York Times reporter Eric Lichtblau. He is author of the new book "Bush's Law: The Remaking of American Justice."
Eric, thank you for being here.
We have known of the existence of this memo for a couple of years, so now that we've had a chance to look at it, what's the surprise in it?
ERIC LICHTBLAU, Reporter, New York Times: Well, the language itself is startling. As you say, we've known that this memo existed since 2004, but to see the rationale, just how far it reached, is still quite gripping. I mean, this is an important piece of history in a lot of ways.
JUDY WOODRUFF: Explain for us how the policy that it represents was a break, a change from what had been in place before?
ERIC LICHTBLAU: What the Justice Department and John Yoo were asserting, essentially, was that military interrogators on behalf of the president had free reign to disregard U.S. and international law in interrogating al-Qaida prisoners.
What John Yoo asserted was that the president was not bound by those laws because he in his duties, his constitutional duties as commander-in-chief, had a duty to protect the country. That overrode whatever international or U.S. laws might prevent, might ban very aggressive methods of interrogation that some might consider torture.
JUDY WOODRUFF: And that argument had not been made before?
ERIC LICHTBLAU: That argument had been touched on by prior administrations, but never quite to the extent that we saw it in the wake of 9/11, no.
JUDY WOODRUFF: How much in this memo -- what, 81 pages -- is specific about torture methods or, I should say, harsh interrogation methods that would then be permissible?
ERIC LICHTBLAU: It does not lay out specific methods like waterboarding, which has now become so infamous, or sleep deprivation. There are other, still-classified memos that laid out what was for a time permissible during military interrogations.
What it does is to say that the bar was very, very high for what would be considered torture, what would be impermissible, essentially something approaching the level of almost imminent death or extreme pain and suffering, that the routine aggressive tactics, short of that, would not be prevented.
JUDY WOODRUFF: And is it known how much of this actually resulted in change in the way prisoners were treated?
ERIC LICHTBLAU: Well, that's the big question now and that's what Democrats on Capitol Hill will now try and find out, is here was the policy. This was the legal framework that was authored in the name of the Justice Department and the Bush administration.What effect did that have, particularly in Guantanamo, for the next nine months that it was in effect? Obviously, there were very tough, very aggressive interrogation practices in use in Guantanamo. Was this a direct result of what was seen in this memo?
Memo written to dispel ambiguity
JUDY WOODRUFF: Why was the memo written?
ERIC LICHTBLAU: It was written because there were questions, really, within the Pentagon that Secretary Rumsfeld and people under him were dealing with on a daily and weekly basis as to what was and was not allowed.
Rumsfeld had approved a list of harsh interrogation techniques that were allowed. Some of the military officials, along with other branches of the government, were beginning to question, "Are we going too far here? What is allowed? Do we have legal authorization for this?"
As we've seen in a lot of different areas, in the wake of 9/11, often the actions came before the actual legal authorization. And they would then have to go back and say, "Do we have legal permission to do what we're doing?"
JUDY WOODRUFF: So, in essence, it was going back, because there had been a previous memo written?
ERIC LICHTBLAU: Right, there had been a previous memo written in 2002, narrower in scope than this one. That was defining the limits of torture. This was offering sort of the grand legal justification for the president's inherent power to disregard laws in ordering and allowing military interrogators to do what they were doing.
JUDY WOODRUFF: And it was rescinded, as you said, nine months later. Remind us why.
ERIC LICHTBLAU: Sure. There was basically a new cast of characters that came in at the Justice Department in 2003 and 2004. There was a new head of the Office of Legal Counsel, which was the office that John Yoo worked in.
They looked at some of the critical elements of the war on terror, including the torture policies, including also the warrantless wiretapping program. What they found was that those legal opinions, almost all of which were written by John Yoo, were shoddy legal work. They found them lacking in the terms of -- in some cases, just ignoring legal precedent or giving them very short shrift.And in the case of the torture memos, they rescind them. In 2004, the Justice Department formally withdrew them, which is almost unprecedented.
DOJ clashed with White House
JUDY WOODRUFF: And was this reflecting the wishes of higher-ups?
ERIC LICHTBLAU: Well, no, there was a real tension within the administration. I mean, the White House was not pleased when the Justice Department did that.
This was when Attorney General Ashcroft had a new deputy, James Comey, who really showed an independence that the White House was not happy with on both the torture issues and, if you recall, as well on the warrantless wiretapping, which led to another famous scene, in which Comey...
JUDY WOODRUFF: In the hospital.
ERIC LICHTBLAU: ... in the hospital scene at John Ashcroft's bedside, where Comey refused to certify to the legality of the warrantless wiretapping. So here you had a new cast of lawyers in the Justice Department saying, "Is what we're doing legal?" And they found that, no, it wasn't.
JUDY WOODRUFF: Eric Lichtblau, put this in context. What was the significance then, looking back on it, in the short run, in the nine months that it was in effect, and in the longer term, in the run of administration policy on interrogation?
ERIC LICHTBLAU: Sure. I think the significance has to be seen as this head-long effort in the immediate months and years after 9/11 to assert broad, almost unprecedented executive authority that we've rarely seen in the country's history.
The country had gone through a remarkable, horrific time after 9/11. And the White House was intent on responding to that in an aggressive way, which certainly the country welcomed, but a way that even many within the administration felt stretched or broke the limits of the law.
And we saw a period of revisiting here, where, how far are we going to go in, for instance, in interrogating prisoners? And there was a pushback within the administration, which was largely secret at the time.We're still now beginning to understand what the chronology was and how all of this was playing out behind closed doors in those years, in 2003 and 2004.
Evidence still coming out
JUDY WOODRUFF: Now, this was released as a result of an ACLU lawsuit, is that right?
ERIC LICHTBLAU: Right. Right.
JUDY WOODRUFF: And how much more is it believed is there documentation inside the administration around interrogation techniques that we still don't know about?
ERIC LICHTBLAU: Oh, I'm sure there's a whole treasure trove of documents there that we still have not seen, for instance, the list of specific interrogation tactics that you were asking about, things like waterboarding and sleep deprivation, and the use of dogs, and stress positions, and things like that.
We have an idea, mostly through media reports, of what was used, but the actual documentation of what was actually authorized by the Pentagon and by the CIA in those early years, in 2002 and 2003, those documents, many of them have still not come out and may not come out for quite a while.
JUDY WOODRUFF: But the expectation is that we'll see them one day?
ERIC LICHTBLAU: Well, the ACLU, to its credit, has done quite a job through their Freedom of Information Act lawsuit in managing to pry loose a lot of these documents through litigation in the courts.
JUDY WOODRUFF: But this is one piece of the puzzle today or yesterday?
ERIC LICHTBLAU: This is a big piece, yes.
JUDY WOODRUFF: Well, Eric Lichtblau, New York Times, and the author of the new book -- we'll say it again -- it's "Bush's Law: The Remaking of American Justice." Thank you very much for being with us.
ERIC LICHTBLAU: Thanks for having me, Judy.