This memorandum is a disgrace, not just morally, but legally as well. In fact it’s not really a legal document at all

Jameel Jaffer Guardian U.K. 4/05/08

Since 2003, my organisation, the American Civil Liberties Union, has been litigating for the release of government documents concerning the abuse and torture of prisoners at Guantánamo and other US facilities overseas. The litigation has resulted in the release of more than 100,000 pages, including interrogation directives, witness statements, autopsy reports, and legal memos. One of the most important of these documents was released to us this week.

The document (pdf) is a legal memorandum authored in 2003 by the office of legal counsel, part of the US justice department, for the department of defence. The memo reinterprets statutes to argue that an act does not rise to the level of torture unless it inflicts the kind of pain associated with “death, organ failure, or the permanent impairment of a significant bodily function”. It argues that, even if a statute bars a particular interrogation method, the president has the authority to ignore the statute. And it argues that, even if an interrogator were to be prosecuted for torture, the interrogator would be able to defend himself by arguing that the torture was not inflicted maliciously but rather as a means of obtaining information.

The memorandum is a disgrace, not just morally, but legally as well. In fact it’s not really a legal memo at all. Its interpretations of federal statutes range from the implausible to the absurd, and it repeatedly ignores or mischaracterises well-settled supreme court precedent. Ultimately it’s a political document, with a clear political agenda: to dismantle every possible restraint on the president’s power.

As Amrit Singh and I explain in a recently published book, it is not difficult to connect the dots between memos like this one and the abuse that has taken place in US detention centres. Using the legal memos, the secretary of defence and commanders in the field issued interrogation directives that expressly endorsed abusive methods. A defence department working group produced a report that endorsed even harsher methods, and some of these methods were inflicted on prisoners at Guantánamo and in Iraq. The Bush administration continues to insist that the abuse was isolated, but the government’s own documents show that abuse was widespread and systemic.

Over the next months, it’s possible that journalists, lawyers, and human rights advocates will unearth yet more information about the Bush administration’s national security policies. Notwithstanding the administration’s self-serving arguments, more transparency would be a very good thing. As the long-overdue disclosure of the 2001 torture memo reminds us, much of the information being kept secret is not being withheld for legitimate security reasons but for purely political ones.