Dear reader,

Kindly take notice that this is just an opinion of the BYBEE Memorandum. Thus my
reflection herein is not in any way engaging nor affecting the Attorney General Jay
Bybee 2002’s Memorandum to the White House.

THE BYBEE MEMORANDUM OF 1 AUGUST, 2002

On 1 August, 2002, Assistant Attorney General Jay Bybee provided a Memorandum to
White House Counsel Alberto Gonzales. The Memo examines the Convention Against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, and its
implementation in 18 United States Code §§ 2340-2340A.
It devotes considerable effort to distinguishing torture, which it agrees is usually banned,
from "cruel, inhuman, or degrading treatment or punishment. It points out, for example,
that "...both the European Court on Human Rights and the Israeli Supreme Court have
recognized a wide array of acts that constitute cruel, inhuman, or degrading treatment
or punishment, but do not amount to torture.
Of particular note here, is that the Memo almost entirely ignores the Third Geneva
Convention. While there is some discussion of Common Article 3 of the 1949 Geneva
Conventions (which deals with conflicts not of an international character), the
Memorandum concludes that "...the standards of conduct established by common
article 3 do not apply to "an armed conflict between a nation-state and a transnational
terrorist organization."
More importantly, for the concerns discussed in this article, the entire discussion the
more general protections applied to POWs is found in a short footnote. That footnote
states, in pertinent part:
While Article 17 of [GC3] places restrictions on the interrogation of enemy combatants,
members of al Qaeda and the Taliban militia are not legally entitled to the status of
prisoners of war as defined in the Convention..."Id at fn 22, p. 39.
The restrictions of Article 17, are, of course, much broader than torture alone. In effect,
the Bybee Memo makes the case that, whether they are torture, or merely "cruel,
inhuman, or degrading treatment or punishment," certainly the interrogation techniques
of Categories II and III, constitute prohibited conduct when applied to POWs protected
under the Article 17's prohibitions not just against physical and mental torture, but also
against threats, insults, or "unpleasant or disadvantageous treatment of any kind."
Effects: Stomach-turning photographs of detainee abuses at Abu Ghraib prison threw
the Bush administration’s policies on torture under an international spotlight in early
2004. Soon afterward, the infamous Department of Justice “torture memos” came to
light. These legal opinions asserted that neither treaty nor statute could limit the
president’s authority to order torture, and provided ready-made legal defense for
executive branch officials who might later face criminal prosecution for torture.
The photographs and the memos appalled Americans, and public disgust helped carry
into law the Detainee Treatment Act of 2005. Most observers probably assumed that the
new law outlawed torture and other brutal and degrading interrogation techniques. It did
not. In fact, one of the Bush administration’s legacies was an ongoing authority for the
U.S. president to authorize cruel and inhuman treatment, amounting to torture, of
prisoners in the “war on terror.”
The Bush team consistently worked behind the scenes to retain the torture option. For
the Bush administration, torture was not a matter of law, but rather a matter of policy or
prerogative.
This Article pieces together the Bush administration’s campaign to retain torture, taking
into account a number of Bush administration legal memoranda that have come to light
in the past year. It argues that one of the first priorities of the new administration and the
new Congress must be to prohibit, permanently, torture and all forms of cruel, inhuman,
or degrading treatment.
President Obama took a first step toward closing off the torture option with his executive
order of January 22, 2009. The order prohibits torture and cruel, humiliating, or
degrading treatment of any person in U.S. custody. It requires all U.S. personnel to
adhere to the interrogation techniques in the Army Field Manual on Human Intelligence
Collector Operations and orders the Central Intelligence Agency (“CIA”) to close any
detention facilities it operates. Important though the order is, it does not permanently
rule out abusive interrogations.
One lesson of the past eight years is that the United States must ban torture once and
for all. Events can change quickly: a new terrorist attack, or the capture of top-level Al
Qaeda figures, could increase the pressure to squeeze information out of detainees, by
brutal means if necessary. Or, a future administration may share the Bush
administration’s view that torture is, under some circumstances and when the president
authorizes it, permissible. Now is the time to remove the torture option by statute, so
that it is not available when circumstances or political leaders change.
Support to Torture Policy: By now enough of the documentary trail has become public to
leave no doubt: immediately after the attacks of September 11, 2001, the Bush
administration began to construct the legal and policy basis for torture and other
coercive interrogation techniques. Five days after the attacks, Vice President Dick
Cheney spoke with journalist Tim Russert on Meet the Press. He told Russert, “We also
have to work, though, sort of the dark side, if you will. . . . [I]t’s going to be vital for us to
use any means at our disposal, basically, to achieve our objective.” Cheney remained
the administration’s point man on working this “dark side.” Assisted and supported by
officials in the Department of Defense, the Department of Justice, and the White House,
and with the knowledge and approval of President Bush, Cheney consistently pressed
the case for torture.
The key facts are well known. Following the U.S. invasion of Afghanistan in October
2001, American forces captured or gained custody of thousands of fighters and
suspected members of Al Qaeda or the Taliban. Questions immediately arose as to how
the detainees could be treated. In particular, U.S. officials wanted to extract any
information that the captives might have regarding future terrorist attacks or plans.
President Bush took the first step toward torture when he issued a memorandum
determining that the Geneva Conventions (which the United States has ratified and
which strictly forbid physical coercion of prisoners) did not apply to members of Al
Qaeda. The document also announced that, though the Geneva Conventions applied to
members of the Taliban, they did not qualify for its protections because they were
“unlawful combatants.”
Perhaps most importantly, the memorandum stated the underlying attitude of the
administration toward rules governing the treatment of detainees: “As a matter of policy,
the United States Armed Forces shall continue to treat detainees humanely and, to the
extent appropriate and consistent with military necessity, in a manner consistent with
the principles of Geneva.”
The words, though sounding lofty, had a clear meaning: American military personnel
would treat detainees humanely not because of any law but, rather, as a policy choice
which the president could reverse at his discretion.
Furthermore, detainee treatment would be consistent with “the principles [not the rules]
of Geneva” and, even then, only as “appropriate” and until overridden by “military
necessity.”
Finally, the memorandum applied only to U.S. military personnel, and not to other
agencies like the CIA. Subsequent secret memoranda prepared by members of the
Bush administration’s “torture team” established legal grounds for the government to
authorize torture and other coercive interrogation techniques.
The key documents came from the Office of Legal Counsel (“OLC”) within the
Department of Justice; OLC opinions establish authoritative interpretations of U.S. law
for the executive branch.
The most notorious of the memoranda, dated August 1, 2002, is addressed to Alberto
Gonzales, then Counsel to the President. The opinion concludes that the primary U.S.
law against torture—the Torture Statute—“prohibits only extreme acts.” In the memo’s
bizarre reasoning, the definition of what constitutes “extreme acts” comes not from any
law or treaty regarding torture, but from a federal health care statute defining
emergency medical conditions.
The memo defines physical torture as acts producing pain “equivalent in intensity to the
pain accompanying serious physical injury, such as organ failure, impairment of bodily
function, or even death.”
The infliction of mental pain or suffering would amount to torture only if it produced
“significant psychological harm of significant duration, e.g., lasting for months or even
years.”
The memo further narrowed the definition of torture by requiring the specific intent to
inflict suffering; in other words, only flat-out sadism could count as torture. The infliction
of pain for other purposes (to elicit information) would not constitute torture. Having set
the bar for torture extraordinarily high, the memo asserts that “there is a wide range of
such [interrogation] techniques that will not rise to the level of torture.” Indeed, as Harold
Koh has pointed out, that “wide range of techniques” could include atrocities that the
Bush administration condemned Saddam Hussein’s regime for perpetrating: branding,
electric shocks, pulling out fingernails, denial of food and water, and others.
But the OLC lawyers offered the White House even more. In essence, they informed
Gonzales that no statute could restrict the President’s ability to carry on the war against
international terrorism. The laws against torture could not apply to actions taken by the
President under his Commander-in Chief authority, including interrogations. In addition,
the memo declares, “[a]ny effort to apply [the Torture Statute] in a manner that
interferes with the President’s direction of such core war matters as the detention and
interrogation of enemy combatants thus would be unconstitutional.” Finally, in order to
make it extra clear that when it came to torturing prisoners the President was above the
law, the August 2002 memo provided a list of legal defenses that would be available to
executive branch officials should they ever be prosecuted for torture. The memo stated
that these justifications “would potentially eliminate criminal liability,” meaning that if a
prosecutor or special investigator at some later time were to determine that torturing
detainees did in fact violate U.S. law, anyone who had acted under the President’s
orders had a ready-made defense. In a separate letter, also dated August 1, 2002, John
Yoo sought to remove any other legal barriers to the president’s discretion regarding
torture. He informed Gonzales that interrogation methods that did not violate the Torture
Statute (and essentially none could) would not violate the Torture Convention and would
therefore not be prosecutable at the International Criminal Court. It was during this
same time that the OLC was giving the “go ahead” to the CIA to implement brutal
interrogations. Memos reveal that the OLC approved specific “enhanced interrogation
techniques,” including water boarding, for use by the CIA. The memos from 2002 and
2004 were secret until July 2008, when the government released them only in heavily
censored form and in response to a Freedom of Information Act lawsuit.

FINDINGS AND RECOMMENDATIONS OF THE TASK FORCE REPORT

This report had 24 findings and recommendations. They were divided into the following
groups:
General findings and recommendations:
Finding 1: U.S. forces, in many instances, used interrogation techniques on detainees
that constitute torture. American personnel conducted an even larger number of
interrogations that involved “cruel, inhuman, or degrading” treatment. Both categories of
actions violate U.S. laws and international treaties. Such conduct was directly counter to
values of the Constitution and our nation.
Finding 2: The nation’s most senior officials, through some of their actions and failures
to act in the months and years immediately following the September 11 attacks, bear
ultimate responsibility for allowing and contributing to the spread of illegal and improper
interrogation techniques used by some U.S. personnel on detainees in several theaters.
Responsibility also falls on other government officials and certain military
 Recommendations:
o Acknowledge that authorization and practice of torture and cruelty after
September 11 was a grave error and take steps to avoid this is repeated
o S. intelligence and service members need clear orders on treatment to
detainees, requiring minimum compliance with Common Article 3 of the Geneva
Conventions. Civilian leaders and military commanders have an affirmative
responsibility to ensure their subordinates comply with the law.
o Congress and President should strengthen criminal prohibitions against torture
and cruel, inhuman or degrading treatment by:
 1- Amending definition of torture in the Torture Statute and War Crimes Act to
mean:
 2-Amending the War Crimes Act definition of “cruel, inhuman and degrading
treatment;
 3- Amending the Uniform Code of Military Justice to define specific offenses
of torture, cruel and inhuman treatment, and war crimes
Finding 3: If there is no firm or persuasive evidence that the widespread use of harsh
interrogation techniques by U.S. forces produced significant information of value. There
is substantial evidence that much of the information adduced from the use of such
techniques was not useful or reliable.

 Recommendations:
o Because the information is old (10 years), the President should direct CIA to
declassify the evidence necessary for the American public to better evaluate
these claims
o If there is information that demonstrates success in using hard interrogation
techniques that may not be disclosed with no risk to national security, that
information should be presented in a neutral forum to assess the claim
o If members of Senate Intelligence Committee think necessary that the
information is not danger to national security, it should disclose it.
Finding 4: The continued indefinite detention of many prisoners at Guantanamo should
be addressed

 Recommendations: because the situation of indefinite detention is abhorrent and

intolerable:
o The administration should move swiftly to release or transfer detainees who have
been cleared for release or transfer
o To deal better with the rest of the detainees, Congress should lift the prohibition
on any of them being brought to the mainland US. No one should doubt that US
authorities can hold them securely.
o After the release or transfer, the remaining detainees should be:
 Tried wherever possible by a US. Article III court
 If the above process fails or can’t handle all the detainees, a military
commission with identical Article III courts standard should try the remaining
cases
  Failing the above, the detainees should be returned to a state of citizenship
or nationality or former citizenship/nationality with the best commitments and
processes the US can obtain
 If that fails, the detainees may be brought to the US and kept in custody of
the US Department of Homeland Security (with proper immigration statutes)
until time to deport.
o Should be a US Declaration of cessation of hostilities with respect to Afghanistan
by end of 2014. If this is not done, US authorities should recognize this as the
same situation as Iraq with the withdrawal of US forces, providing a de facto
cessation.
o After cessation and clearing all detainees, the facility should be closed not later
than the end of 2014
Finding 5: US has not sufficiently followed the recommendations of 9/11 Commission to
engage its friends to develop a common coalition approach

 Recommendation: The implementation of the 9/11 Commission’s recommendation

on the necessity of a common coalition approach.
Legal Findings and Recommendations:
Finding 6: Lawyers in the Justice Department’s Office of Legal Counsel repeatedly gave
erroneous legal sanction to certain activities that amounted to torture and cruel,
inhuman or degrading treatment in violation of US and international law and as a
consequence, did no properly serve their clients: President and American people.
Finding 7: The Office of Counsel failed to give sufficient weight to the input of the
Department of Defense, the FBI and the State Department, who have expertise on legal
matters regarding detainee treatment.

 Recommendations: OLC should always consult with the agencies affected by its
legal advice. When giving legal advice contrary to the subject matters of those
agencies, OLC should include an outline of their opposing views, legal support,
reasoning and the basis for the opinion.
Finding 8: Since Carter administration, OLC has published some opinions.
Transparency is vital for democracy. The president must be able to rely on confidential
legal advice.

 Recommendations:
o The American people should be notified when a classified opinion is released. If
those opinions are released, attorneys should be mindful of their responsibility to
be impartial
o Congress should amend the attorney general’s current notification requirement
to when executive branches acknowledge to refuse to comply with a statute.
Congress should be notified when DOJ determines that the executive branch is
not bound by a statute.
Extraordinary Rendition Findings and Recommendations
Finding 9: US has violated its international legal obligations in its practice of the
enforced disappearances and arbitrary detention of terror suspects in secret prisons
abroad.

 Recommendations:
o DOS, DOD and CIA should expeditiously declassify and release information
regarding any secret proxy detention abroad. If there are still detainees in these
places, ensure their access to the International Committee of the Red Cross.
o US government must clarify that Article 3 of the Convention Against Torture and
Article 2 (1) of the International Covenant on Civil and Political Rights both
include individuals in US territory and in US jurisdiction extraterritorially.
Finding 10: “Diplomatic assurances” that suspects would not be tortured by the
receiving countries proved unreliable in several cases. Much evidence exists on the
practices of the receiving countries that individuals were “more likely than not” to be
tortured.

 Recommendation: Diplomatic assurances must not be the sole dispositive factor for
US satisfaction of its obligations under CAT Article 3 (1) of the return of a person to
a state, if there are substantial grounds for being in danger of torture. Diplomatic
assurances should be established by legislation as being only one of several factors.
Also, there should be a right to monitor, to interview and to retake custody of an
individual
Finding 11: US officials involved with detention in the black sites committed acts of
torture and cruel, inhumane or degrading treatment.

 Recommendation: Because the CIA’s legal and political consequences of their

rendition program and network of secret prisons, the US should fully comply with its
legal obligation under the Convention Against Torture in cooperating with pending
investigations and lawsuits in US and abroad.
Medical Findings and Recommendations
Finding 12: After 9/11 psychologists related to US intelligence agencies helped create
interrogation techniques to question detainees. The methods were determined by the
OLC as to be legal but many are torture or cruel, inhuman or degrading treatment.
Finding 13: Medical professions include physicians and psychologists, participated and
monitored various interrogations and did not report abuses.
Finding 14: Before 9/11 the ethical principles of physicians regarding military detainees
included prohibitions of torture or providing care to facilitate torture. Also, they have a
duty to report abuses and avoid participating/ being present/ providing detainees
medical information to interrogators.
Finding 15: After 9/11 military psychologist/physicians were instructed that they were
relieved of the obligation to comply with nonmilitary ethical principles and their military
roles were defined as non-health-professional combatants.

 Recommendations:
o DOD and CIA should ensure adherence to health professional principles. DOD
should discontinue classification of health professionals as non-health-
professional combatants. Should adopt confidentiality of detainee’s medical
information from being shared with interrogators.
o Periodical military reviews of the conduct/performance of health professionals
should be based on their compliance with military detention standards and
violation findings should be shared with National Practitioner Data Bank, state
licensing boards, etc.
o DOJ should prohibit the OFC from approving interrogation techniques based on
representations that health providers will monitor the techniques and regulate the
degree of physical and mental harm.
Finding 16: DOD procedures regarding detainee hunger strikes we contrary to medical
and professional ethical standards, including improper coercive involuntary feedings
early in the course of hunger strikes that, when resisted, were done by physically forced
nasogastric tube feedings of detainees who were completely restrained.

 Recommendations:
o Forced feeding of detainees is a form of abuse and must end.
o US should adopt standards of for hunger strikes, established in the 1991 World
Medical Association Declaration of Malta on Hunger Strikes
o As a matter of public policy issue, US has legitimate interest regarding detainees
to prevent them from starving to death. In doing so, it should respect the findings
and processes in the above recommendations.
Consequences Findings and Recommendations
Finding 17: It is harmful for the US to release detainees without clear policies/practices
regarding re-introduction of those individuals into society of the countries of release.

 Recommendation: US should establish agreements with all countries receiving

detainees after release to establish a standard regarding those that don’t have
family, so they can be monitored on their ability to get housing, medical and other
necessities so they fully integrate to society.
Finding 18: There is big discrepancies between the recidivism figures published by
agencies like the Defense Intelligence Agency (DIA) and the Oversight and
Investigations of the House Committee on Armed Services, vs. NGO’s like New
America Foundation. Systematic and detailed data is needed to deal with recidivism,
specifically indicating if an individual is “confirmed or “suspected” of that activity.

 Recommendation: That DIA discloses all the criteria used to make determinations of
individual as “confirmed” or “suspected” categories. Those on the suspect list may
 pose no threat to national security, so there should be separate numbers for better
accuracy.
Obama Administration Findings and Recommendations
Finding 19: The high level of secrecy regarding the rendition of torture of detainees
since Sept. 11 cannot continue to be justified on the basis of national security.

 Recommendations:
o Executive Branch should declassify evidence regarding CIA’s and military abuse
and torture of captives, including but not limiting: Senate Intelligence Committees
reports; Report of the Special Task Force on Interrogation and Transfer Policies;
the CIA office of the Inspector General Office reports on the deaths of Gul
Rahman, Manadel al-Jamadi and Abed Hamed Mowhoush; the non-registration
of “ghost detainees”, use of CIA unauthorized techniques in facilities;
Investigation by the Armed Forces criminal investigation division, the chain of
command.
o Executive Branch should cease its attempts to prevent detainees from giving
evidence about their treatment in CIA custody. GB detainees have no security
clearances and were exposed to intelligence sources and methods only
involuntary.
o Congress shall legislation that acts of torture, war crimes and crimes against
humanity are not legitimate “intelligence sources” under the National Security Act
and evidence of these acts cannot be classified unless disclosure would
endanger specific individuals, violate specific agreements with foreign countries.
Finding 20: Convention Against Torture requires that states ensure in their legal system
that victim obtains redress and has enforceable right to fair and adequate
compensation”.US has not complied with this because of its invocation of state secrets
privilege.

 Recommendation: states secret privilege should not be invoked to dismiss lawsuits

at the pleading stage. They should have an independent judicial review. Courts
should evaluate the evidence and restrict this invocation only to cases necessary to
guard specific harms to national security.
Finding 21: Convention Against Torture requires every state part to criminalize all acts
of torture and proceed to an impartial investigation. US has not complied with this.

 Recommendations: Congress should amend War Crimes and Torture Statue to

clarify that a person of ordinary sense would know that treatment of a detainee
inflicts/likely to conflict with severe of serious suffering, it's not a defense that they
allege that they received advise from counsel that their actions are not torture
Finding 22: The Obama administration standards for interrogation are set forth in the
Army Field Manual on Interrogation. Some changes were included that weakened some
key legal protections (like language that prohibited the use of sleep deprivation and
stress positions’; also detainee can be interrogated 40 consecutive hours with 4 hours
of rest period; takes away the non-coercive separation).

 Recommendations: The Manuel should be amended regarding the changes

mentioned above.
Finding 23: Detainees transferred from US custody to custody of the National
Directorate of Security in Afghanistan has concluded in torture. US has legal obligation
under Article 3 of the Convention Against Torture to not transfer if torture is most likely
to happen.

 Recommendation:
o Executive Branch and Congress should clarify Article 3 is legally binding even in
transfers outside US territory.
o There should be ongoing monitoring by US and Afghanistan Independent Human
Rights Commission.
o Intelligence appropriations should be limited by the “Leahy Law” that restricts US
funds to any unit of a foreign country if there is evidence that violations of human
rights, unless the government of that country is taking effective measures to
bring to justice those committing the violations.
Finding 24: Obama administration has dramatically improved the process of notifying
the International Committee of the Red Cross of detainee’s status, and providing access
to detainees

 Recommendations:
o Publicly confirm its requirements for ICRC notification and access;
o Formally adopt regulations regarding ICRC notification and access for individuals
detained pursuant to armed conflict;
o Ratify the International Convention for the Protection of All people from Enforced
Disappearance.

The Bybee Memorandum enlightens us to best appreciate what really happened during this period.

We understand that the “War on Terror” was of the highest importance for the safety of the entire
humanity. It is common sense that desperate situation calls for desperate measures. However it is
remains important to acknowledge that a lot of misconduct leading to serious violations of human
rights.

--
By research of:
Christian Romeo NJIA
Legal Consultant
(Graduate in International Human Rights Laws)

Member of International Bar Association (IBA)

--
Sources:
- http://www.washingtonpost.com/wp-
srv/nation/documents/dojinterrogationmemo20020801.pdf (Links to an external site.)
- http://gould.usc.edu/why/students/orgs/ilj/assets/docs/18-3%20Sandholtz.pdf (Links to
an external site.)