Letter from Lawyers Against Torture to President George W. Bush re" Lawyer's Statement on Bush Administration's Torture Memos

Letter from Lawyers Against Torture to President George W. Bush re" Lawyer's Statement on Bush Administration's Torture Memos stating that the torture memoranda circumvent long established and universally acknowledged principles of law and common decency, and calling for the release of all such memoranda and an inquiry into whether they had any connection to Abu Ghraib abuses

Thursday, December 16, 2004



Lawyers' Statement on
Bush Administration's Torture Memos

TO:.President George W. Bush Vice President Richard B. Cheney Secretary of Defense Donald Rumsfeld Attorney General John Ashcroft Members of Congress
his is a statement on the memoranda, prepared by the White House, Department of Justice, and Department of Defense, concerning the war powers of the President, torture, the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, and related matters. The Administration's memoranda, dated January 9, 2002, January 25, 2002, August 1, 2002 and April 4, 2003, ignore and misinterpret the U.S. Constitution and laws, interna­tional treaties and rules of international law. The lawyers who approved and signed these memoranda have not met their high obligation to defend the Constitution.
Americans have faith that our government respects the Constitution, the Bill of Rights, laws passed by Congress, and treaties which the United States has signed. We have always looked to lawyers to protect these rights. Yet, the most senior lawyers in the Department of Justice, the White House, the Department of Defense, and the Vice President's office have sought to justify actions that violate the most basic rights of all human beings.
The memoranda prepared and approved by these lawyers:
. Claim a power for the President as Commander-in-Chief to choose to ignore laws, treaties and the Constitution regarding the treatment of pris­oners. (DOD memo, April 4, 2003).
110. Advise the President that he has the authority to approve the infliction of extreme physical and mental distress by defining "torture" so narrowly as to exclude all but treatment that is "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." According to the Administration's memoranda, mental pain or suffering does nor amount to torture unless "it results in significant psychological harm of signif­icant duration, e.g., lasting for months or even years." (DO) memo, August 1, 2002). This memo was reportedly prepared in order CO provide legal bases and defenses for harsh methods already used by the CIA, in the event that CIA agents were prosecuted for violation of the federal anti­torture statutes.
. Assert the permissibility of the use of mind-alter­ing drugs that do not "disrupt profoundly the sense of personality." According to the memoran­dum: "By requiring that the procedures and the drugs create a profound disruption, the statute requires more than that the acts 'forcibly separate' or 'rend' the senses or personality. Those acts must penetrate to the core of an individual's abil­ity to perceive the world around him, substantially interfering with his cognitive abili­ties, or fundamentally alter his personality." (DOJ memo, August 1, 2002).
• Advise the President that despite concerns raised by the Department of State, the U.S. is exempt from compliance with the Geneva Convention on the Treatment of Prisoners of War with respect to the war in Afghanistan. (See White House Counsel Memo, January 25, 2002). This argument ignores that the treaty, by its own terms, governs all conflicts "at any time and in any place whatsoever," and protects even unlaw­ful combatants who do not qualify as prisoners of war from "humiliating and degrading treatment" and "mutilation, cruel treatment and torture." (Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 3 para. 1). As stated by Attorney General John Ashcroft, the purpose of claiming an exemption from the Geneva Convention was to provide American intelligence, military and law enforcement personnel with a defense to charges relating to "field conduct, detention conduct or
DATE/CASE ID: 23 NOV 2004 200303827 DOS-002247

interrogation of detainees" that is prohibited
by the Geneva Convention. (Letter to the
President, Feb. 1, 2002).
j. Contrived defenses by distorting definitions of "necessity," "self-defense," and "superior orders" in order to avoid independent responsibility for actions that would violate the U.S. Army Field Manual and relevant statutory and case law. (DO] memo, August 1, 2002; DOD memo, April 4, 2003).
These memoranda and others like them seek to circum­vent long established and universally acknowledged principles of law and common decency. The memoran­da approve practices that the United States itself condemns in its annual Human Rights Report. No mat­ter how the memoranda seek to redefine it, torture remains torture. The belated repudiation of the August 2002 memorandum (which had been signed by Jay S. Bybee, then Assistant Attorney General, Office of Legal Counsel and now a Federal Judge) is welcome, but the repudiation does not undo the abuses that this memo­randum may have sanctioned or encouraged during the nearly two years that it was in effect. The subsequent repudiation, coming after public outcry, confirms its original lawless character.
Moreover, the claim that the President's authority as Commander-in-Chief allows him to ignore laws, treaties, and the Constitution relevant to human rights, and there­by to shield those acting on his authority who violate domestic and international law by their interrogation methods and other behavior, directly contradicts several major Supreme Court decisions, numerous statutes passed by Congress and signed by Presidents, and specific provisions of the Constitution itself. One of the surpris­ing features of these legal memoranda is their failure to acknowledge the numerous sources of law that contradict their own positions, such as the Steel Seizure Case, Youngstown Sheer and Tube Co. v. Sawyer, 343 U.S. 579 (1952). The unprecedented and under-analyzed claim that the Executive Branch is a law unto itself is incompat­ible with the rule of law and the principle that no one is above the law.
The lawyers who prepared and approved these memoranda have failed to meet their professional obligations. A lawyer has a duty both to ask his or her client what the client wants to do and assist the client in accomplishing his or her law­ful objectives. But the lawyer has a simultaneous duty, as an officer of the court and as a citizen, to uphold the law. Enforcement of all of our laws depends on lawyers telling clients not only what they can do but also what they can not do. This duty binds all lawyers and especially lawyers in government service. Their ultimate client is not the President or the Central Intelligence Agency, or any other department of government but the American people. When representing all Americans, government lawyers must adhere to the Constitution and the rule of law. In fact, government lawyers take the following oath: "I . . . do solemnly swear (or affirm) that I will support and defend the Constitution of the United States..."
Conscientious leaders of the Department of Justice and lawyers in other governmental agencies have always striv­en to meet that standard. But some of those currently occupying senior legal positions in this Administration in this instance have abandoned this standard. They have counseled individuals to ignore the law and offered argu­ments to minimize their exposure to sanction or liability for doing so.
While the facts cited above are established, much, however, is still not known, for the Administration refuses to produce other memoranda and documents relating to treatment of prisoners and detainees. We therefore:
Call upon the Administration to release all memoranda relating to such treatment and
on Congress to require their production if they are not released; and

Call for an appropriate inquiry into how and why such memoranda were prepared and
by whom they were approved, and whether there is any connection between the mem­oranda and the shameful abuses that have been exposed and are being investigated at
Abu Ghraib prison in Baghdad and ar other military prisons.

[The undersigned]


Bruce Ackerman
Sterling Professor of Law and
Political Science, Yale
Mark D. Agrast
Senior Vice President for
Domestic Policy, Center for
American Progress
Anthony G. Amsterdam
Judge Edward M. Weinfeld
Professor of Law, New York
University •
Philip Anderson
Past President of American Bar Association
Nan Aron
President, Alliance for Justice
Frank Askin
Distinguished Professor, Rutgers Law School
Jack M. Balldn
Knight Professor of
Constitutional Law and the First
Amendment, Yale Law School
David A. Barrett
Joan Z. "Jodie" Bernstein
former Director, Bureau of Consumer Protection -
Richard 1. Beattie Hon. Anthony C. Beilenson
former Member of the United
States House of Representatives
Barbara Black
Professor of Law and former
Dean, Columbia Law School
Hon. Birch Bayh
former United States Senator
John Charles Boger
Professor of Law. University of
North Carolina at Chapel Hill
School of Law
Brooksley Born former Chairperson of U.S.
Commodity Futures Trading
Commission, Clinton
Elizabeth Cabraser
George F.CarpInello Douglass W. Cassel, Jr.
Director of Center for International Human Rights and Clinical Professor, Northwestern University School of Law
William Coblentz David Cole
Professor of Law. Georgetown
Michael A. Cooper
Past President. Association of
the Bar of the City of New York
Edward Correia
former Special Counsel to President Clinton on Civil Rights
Joseph W. Cotchett
Hon. Mario Cuomo
former Governor of New York
John C. Curtin, Jr.
former President. American Bar Association
Dennis E. Curds
Clinical Professor of Law
Emeritis, Yale Law School
Talbot "Sandy" D'Alemberte
former President, American Bar Association
James Danaher
Norman Dorsen
Frederick 1. and Grace A. Stokes Professor of Law, Co-Director Arthur Garfield Hayes Civil Liberties Program, New York Universio., School of Law
John W. Douglas
Peter Edelman
Professor of Law, Georgetown
Hon. Don Edwards
former Member of the United States House ofRepresentatives
Eugene R. Fidel)
Feldesman Tucker Leifer Fidel!
Hon. Lee Fisher
former Attorney General of Ohio
Lawrence Fox
Partner, Drinker Biddle & Reath LLP
Monroe H. Freedman
Howard Lichenstein Distinguished Professor ofLegal Ethics, Hofstra University School of Law
Leon Friedman
Joseph Kushnir Distinguished Professor of Civil Liberties Law. Hofstra University School of Law
Michael S. Frisch
Ethics Counsel and Adjunct
Professor of Law, Georgetown
University Law Center
Hon. John J. Gibbons
retired ChiefJudge. United
States Court of Appeals for the
Third Circuit
Lawrence S. Goldman
Immediate Past President, National Association of Criminal Defense Attorneys
Robert W. Gordon
Chancellor Kent Professor of
Law and Professor of History,
Yale University
Scott Greathead
Jennifer Harbury
President, Unitarian Universalist Service Association
Mark I. Harrison
former President, State Bar of
Robert E. Hirshon
former President, American Bar
Nancy Hollander
Past President, National
Association of Criminal Defense
Scott Horton
President, International League for Human Rights
Zona Hostetler
Hon. Shirley Hufstedlerformer
Circuit Judge. United States
Court of Appeals for the Ninth
Simon Lazarus David Isbell
Senior Counsel, Covington and
Robert D. Joffe lion. Nathaniel C. Jones
retired Circuit Judge, United States Court of Appeals for the
Sixth Circuit
Lewis B. Kaden Pamela Karlan
Professor of Law, Stanford
Organizations listed for identification purposes only.

Yale Kamisar
Clarence Darrow Distinguished University Professor of Law Emeritus and Professor of Law Emeritus, University of Michigan Law School
Robert H. Kapp
Pamela Karlan
Professor of Law, Stanford
Hon. Robert Kastenmeier
former Member of the United
Stales House of Representatives
Nicholas Katzenbach
former U.S. Attorney General,
Johnson Administration
John Keker
David E. Kendall
Victor A. Kovner
Former Corporation Counsel,
City of New York
Sheldon Krantz
Albert J. Krieger
Past President, National Association of Criminal Defense Lawyers
Simon Lazarus
Public Policy Counsel, National Senior Citizens' Law Center
Lisa Lerman
Professor of Law and Director, Law & Public Policy Program, Catholic University Law School
Robert E. Litan
First Deputy Assistant Attorney
General for Antitrust and .
Associate Director of Office of
Management and Budget,
Clinton Administration
Goodwin Liu
Acting Professor of Law, Boalt Hall School of Law at University of California-Berkeley
Robert MacCrate
former President, American Bar Association
Patrick Macrory Joseph D. Mandel
Timothy G. Massad Gay McDougal
Executive Director, Global
Harry McPherson
Former White House Counsel, Johnson Administration
Tedson Meyers
Abner J. Mikva
former Circuit Judge, United States Court of Appeals for the District of Columbia Circuit
Cheryl Mills
Deputy White House Counsel,
Clinton Administration
Hon. E. Leo Mitonas
former Chief Administrative Judge of the State of New York and Associate ChiefJustice, Appellate Division of the Supreme Court of New York and Immediate Past President, Association of the Bar of the City
of New York
Martha L. Minow
William Henry Bloomberg
Professor of Law. Harvard Law
Irvin B. Nathan
former Principal Associate
Deputy Attorney General,
Clinton Administration
Ralph G. Ness
President. People for the
American Way
Gregory T. Nojeim
Associate Director, American
Civil Liberties Union
Washington' National Office
Hon. William A. Norris retired Circuit Judge, United States Court of Appeals for the Ninth Circuit
Joseph Duck
former Principle Associate
Deputy Attorney General,
Clinton Administration
Myron Orlield
Associate Professor of Law and Director, Institute on Race and Poverty, University of Minnesota Law School
Hon. Stephen M. Orlofsky
former District Judge, United
States District Court for the
District of New Jersey
Alexander Papachristou John Payton
former President, District of Columbia Bar
Robert M. Pennoyer
former Special Assistant to the
Assistant Secretary of Defense
for International Security
Affairs, Eisenhower
John 11. Pickering
former President, District of Columbia Bar Association
Michael Posner
Executive Director, Human
Rights First
Llewelyn G. Pritchard
Bruce Rabb
Drucilla S. Ramey
former Executive Director and
General Counsel, San Francisco
Bar Association
Michael Ratner
President, Center for
Constitutional Rights
Norman Redlich
Counsel, Wachtel! Lipton Rosen
& Katz and former Dean, New
York University School of Law
Judith Resnik
Arthur Liman Professor of Law,
Yale Law School
Hon. Cruz Reynoso
former Justice, California
Supreme Court
Wiliiam L. Robinson
founding Dean and Professor of Law, University of the District of Columbia David A. Clarke School of Law
Anthony D. Romero
Executive Director, American
Civil Liberties Union
Kenneth Roth
Executive Director, Human
Rights Watch
Leonard S. Rubenstein
Executive Director. Physicians for Human Rights
Stephen A. Saltzburg
Wallace and Beverly Woodbury
University Professor. George
Washington University Law
Barry C. Scheck
President, National Association of Criminal Defense Lawyers
Organizations listed for identification purposes only.

Herman Schwartz
Professor of Law, American
University Washington College
of Law
Irwin H. Schwartz
Hon. William S. Sessions
former Chief Judge, United
States District Court for the
Western District of Texas,
former FBI Director, 19811993
John Shattuck
former Assistant Secretary of
State for Human Rights
Hon. Felice K. Shea
former Justice, New York State
Supreme Court
Jerome S. Shestack
former President, American Bar Association
Virginia E. Sloan
Founder and President, The
Constitution Project
William Reece Smith, Jr,
former President, American Bar Association
Neal R. Sonnett
Chair, AVA Task Force on
Treatment of Enemy Combatants
Marvin Slender
Jon B. Streeter
President, San Francisco Bar
Nadine Strossen
President, American Civil
Liberties Union
Jim Sturdevant
President, Consumer Attorneys
of California
William L. Taylor
Chairman, Citizens' Commission on Civil Rights
William W. Taylor, Ill
Partner, Zuckerman Spaeder
Hon. Kathleen Kennedy
former Lieutenant Governor of Maryland
Lawrence Tribe
Carl M. Loeb University
Professor, Harvard University
Marna Tucker
former President, District of Columbia Bar
Hon. Harold S. Tyler, Jr.
former U.S. Deputy Attorney General, Ford Administration and former District Court Judge,
U.S. District Court for the
Southern District of New York

Steven T. Walther
former Chair and current
Executive Board Member,
American Bar Association
Center for Human Rights and former Chair, ABA Standing
Committee on World Order
Under Law
Charles S. Warren
Board Chair, New York League
of Conservation Voters
James D. Weill
Chair of Alliance for Justice
Thomas B. Wilner
Judith A. Winston
former General Counsel and
Undersecretary, United States
Department of Education,
Clinton Administration
Ellen Yaroshefsky
Professor of Law and Director
of Jacob Burns Ethics Center,
Benjamin N. Cardozo School of
Law at Yeshiva University
Organizations listed for identification purposes only.