The Bybee Memorandum of 1 August, 2002

On 1 August, 2002, Assistant Attorney General Jay Bybee provided a Memorandum1 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 usually2 banned, from "cruel, inhuman, or degrading treatment or punishment.3 It points out, for example, that "...both the European Court on Human Rights4 and the Israeli Supreme Court5 have recognized a wide array of acts that constitute cruel, inhuman, or degrading treatment or punishment, but do not amount to torture.6

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),7 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."8

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 179 of [GC3] places restrictions on 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..."10

Id at fn 22, p. 39.

The restrictions of Article 17, are, of course, much broader than torture alone. In effect, the Bybee Memo11 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,12constitute 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." 13

1. Memorandum For Alberto Gonzales Re; Standards of Conduct for Interrogation under 18 USC §§ 2340-2340A, dated August 1, 2002.

2. Although it argues at length that Presidential powers as Commander-in-Chief authorize conduct which would be otherwise illegal if necessary to defense of the United States. See, id at Section V, commencing on p. 31, "The President’s Commander-in-Chief Power."

3. See, e.g. id at pp. 21 et seq and 27 et seq. The distinction is made for the purposes of domestic law to analyze both the reservations placed by the United States on its ratification of the Torture Convention, id at__, and the intention of the enabling legislation id at __.

4. The Memo discusses Ireland v. the United Kingdom (1978) where the ECHR considered interrogation methods which included 1) wall standing where the prisoner leaned against a wall standing on his toes and with all his weight on his fingers, 2) continuous hooding except during interrogation, 3) subjection to loud and continuous noise, 4) sleep deprivation pending interrogation and 5) deprivation of food and drink through a reduced diet during and pending interrogation. The Memo notes that the ECHR concluded "that the techniques produce ‘intense physical and mental suffering’ and ‘acute psychiatric disturbances,’ [but] they were not [sic] sufficient intensity or cruelty to amount to torture." Id at 29.

5. The Memo also discusses Public Committee Against torture in Israel v. Israel, 38 ILM 1471 (1999) in which the Israeli Supreme Court considered five interrogation methods which included forceful shaking, stress positioning with an opaque hood and loud music, crouching stress positions, excessively tight handcuffs, and sleep deprivation. It notes that "While the Israeli Supreme Court concluded that these acts amounted to cruel and inhuman treatment, the court did not expressly find that they amounted to torture." id at 30.

6. Id at 31.

7. See id at fn 8, and a reference to a to date unpublished Memorandum for John C. Yoo, Deputy Assistant Attorney General, Office of Legal counsel, from James C. Ho, Attorney-Advisor, Office of Legal Counsel, Re: Possible Interpretations of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Feb. 1, 2002).

8. . That statement is certainly correct within its limitations. The questions presented by the invasion of Afghanistan in pursuit of a terrorist organization, however, have other and more complex ramifications as discussed above.

9.GPW Article 17, states in part:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind

10. Citing the Memorandum of 22 January, 2002 from Jay Bybee, Office of Legal Counsel for Alberto R. Gonzales, Counsel to the President and William J. Haynes II, General Counsel of the Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees .

11. The Bybee Memo was, to some extent, repudiated by the administration as pure legal analysis for hypothetical purposes when it was leaked to the public. See,

12. See, ___ above and see the more extensive legal analysis below in Section VI(C)(1).

13. In addition to the separate restrictions on solitary confinement as punishment in Article __.