Memo may be clue to harsh interrogation methods

By DAVID JOHNSTON and SCOTT SHANE , New York Times

Last update: April 2, 2008 - 8:41 PM

WASHINGTON - A newly disclosed Justice Department memo, written in March 2003 and authorizing the military's use of harsh interrogation techniques, offers what could be a clue in an unsolved mystery: What responsibility did Pentagon and administration officials have for abuses committed by U.S. troops at the Abu Ghraib prison in Iraq and in Afghanistan, at Guantanamo Bay, and elsewhere?

Some legal experts said on Wednesday that the memo, written the month that the United States invaded Iraq, adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials and not just irresponsible actions by low-level personnel.

The memo was written by John Yoo of the Office of Legal Counsel, the executive branch's highest authority on the interpretation of the law. It told the Pentagon's senior leadership that inflicting pain on a suspect would not be considered torture unless it caused "death, organ failure or permanent damage."

While resembling an August 2002 memo drafted largely by Yoo, the March 2003 opinion went further, arguing more explicitly that the president's war powers could trump the law against torture, which it said could not constitutionally be enforced if it interfered with the commander-in-chief's orders.

Scott Silliman, head of the Center on Law, Ethics and National Security at Duke University and a former Air Force lawyer, said he did not believe the memo directly caused mistreatment. But he added, "The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere."

In an e-mail message, Yoo, now a Berkeley law professor, rejected the idea that his memo helped create a culture for mistreatment.

The memo was made public Tuesday after it was declassified in response to a request by the American Civil Liberties Union under the Freedom of Information Act.