A Bush-era legal memo gives new detail on how the administration tiptoed around laws and treaties to justify presidential power to transfer prisoners captured in the war on terror to countries where they might be tortured.
The March 13, 2002, memo by Jay S. Bybee, then assistant attorney general in the Justice Department's Office of Legal Counsel, said the president has an unfettered right to transfer prisoners captured in the war on terror to governments around the world without regard for whether they would be tortured there.
The memo appears to underpin the Bush administration's extraordinary rendition program. It is one of nine legal memos made public Monday that further details the administration's expansive definition of presidential authority in a time of war. Most of the memos gave legal opinions to the White House; the rendition memo was written for the Pentagon.
When the memo was written, the office had already decided that al-Qaida and Taliban detainees were not protected by the Geneva Conventions, the international treaty the governs the treatment of prisoners of war.
Assertion of presidential powers
The March memo went further. It said that prisoners held outside the United States were not protected by U.S. laws against torture nor against a separate international treaty banning torture. It also said that a 1998 law making it U.S. policy not to hand over prisoners to country where they may be tortured was invalid because it unconstitutionally interferes with presidential powers.
However, the possibility that prisoners might be tortured after a transfer to another government outside the criminal justice system — known as extraordinary rendition — was on the minds of the Justice Department. The memo suggests ways that U.S. officials could transfer prisoners to countries where they may indeed be tortured without making them legally liable for their treatment.
"To fully shield our personnel from criminal liability, it is important that the United States not enter in an agreement with a foreign country, explicitly or implicitly, to transfer a detainee to that country for the purpose of having the individual tortured," states the memo. "So long as the United States doe not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer. even if the foreign country receiving the detainee does torture him."
CIA Director Leon Panetta has said the United States will continue to engage in extraordinary rendition but will use it rarely and will be more selective about the countries prisoners are sent to. Some of the prisoners that have been transferred by the United States to other countries claim they were tortured.
The Obama White House is reviewing the entire detention and rendition program.
Jameel Jaffer, director of the American Civil Liberties Union's national security project, said the memo, taken with the others released Monday, show the White House used the war on terror to claim broad powers.
"These memos were meant to provide the president with a blank check with respect to the rights of not only prisoners overseas but people in the United States as well," he said.
Steven Bradbury, the Bush administration's last principal deputy assistant attorney general, wrote in a Jan. 15 parting memo that the expansive findings about presidential powers had long since been superseded or withdrawn.