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Congress and the Bush administration have had major disputes
over the definition of torture and which interrogation methods
are effective -- yet humane enough -- to be used on terror
suspects.
The controversial memo
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John Yoo, a former Department of Justice lawyer, wrote
the torture memo in 2003, but it was not publicly released
until five years later. |
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Federal laws prohibit
assault, maiming and other physical abuse, and there are laws
and treaties against torture.
The 2003 memo argues that physically aggressive tactics should
be legal in wartime and that the international treaties should
not apply to U.S. interrogators in foreign countries because
of a presidential power to trump the laws.
John Yoo, a former Department of Justice lawyer and professor
at the University of California -- Berkeley School of Law,
wrote the memo in the context of what to do with captured
members of al-Qaida, the terrorist network that claimed responsibility
for the Sept. 11 attacks on New York and Washington.
"If a government defendant were to harm an enemy combatant
during an interrogation...he would be doing so in order to
prevent further attacks on the United States by the al Qaeda
terrorist network," Yoo wrote, according to the Washington
Post.
Yoo goes on to argue that the "executive branch's constitutional
authority to protect the nation from attack" should be
enough to justify such actions.
Interrogation at Guantanamo and Abu Ghraib
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The abusive treatment of prisoners at Abu Ghraib prison
in Iraq was exposed by the media in spring of 2004. |
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The memo served as a basis
for some of the most controversial tactics used by U.S. interrogators,
including those at the Guantanamo Bay detention camp and Abu
Ghraib prison.
Under the legal justifications set up by the Bush administration,
interrogators have used extreme temperatures, head-slapping
and a simulated drowning technique called “waterboarding”
against terror suspects.
Inhumane treatment of prisoners at the Abu Ghraib prison in
Iraq was revealed to the world through photos of U.S. military
personnel forcing prisoners to strip, wear hoods and leashes,
threatening them with dogs and chaining them in stressful positions.
Martin S. Lederman, a former lawyer with the Office of Legal
Counsel and a professor at Georgetown University, told the Washington
Post that the Yoo memo created a sense of lawlessness in Iraq.
"It created a world in which everyone on the ground believed
the laws did not apply," Lederman said.
Fifth and Eighth Amendments
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The controversial memo argues that enemy combatants are
not protected under the US Constitution. |
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Yoo concluded in his memo
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.
The memo argues that the president's constitutional duty is
to protect the nation, which overrides any US or international
laws preventing aggressive tactics.
The memo was sent to the Pentagon as a guide before the invasion
of Iraq. Nine months later, the Department of Defense was told
to stop following the memo.
What qualifies as torture
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The United States signed the United Nations Convention
Against Torture in 1988. |
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The memo reignited debate
over what qualifies as torture. In the memo, "the bar was
very, very high for what would be considered torture...essentially
something approaching the level of almost imminent death or
extreme pain and suffering," New York Times reporter Eric
Lichtblau told the NewsHour.
The United Nations Convention Against Torture, which the United
States signed in 1988, defines torture as:
"Any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or
a third person has committed…or intimidating or coercing
him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence
of a public official or other person."
Waterboarding controversy
The technique at the center
of the torture debate is waterboarding, a method that is approved
for use by the CIA.
Waterboarding is a way of simulating drowning that involves
binding the suspect to an inclined board, covering his or
her head with cloth or cellophane, and pouring water repeatedly
over the head. In some cases water will enter the nose and
mouth. Psychologically, the person's brain registers that
it is drowning, and a gag reflex reacts as choking.
The technique was brought to public attention and became very
controversial in 2007. Many members of Congress wanted to
see the CIA limited to the same methods used by military questioners,
which do not include waterboarding or sensory deprivation.
President Bush vetoed a bill banning waterboarding in March
saying it "would take away one of the most valuable tools
in the war on terror."
In response, Senator Edward Kennedy, D-Mass., said in a statement,
"Unless Congress overrides the veto, it will go down
in history as a flagrant insult to the rule of law and a serious
stain on the good name of America in the eyes of the world."
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