Bush-era Memo Claims Unfettered Rendition Powers
The memo appears to underpin the Bush administrations use of extraordinary rendition, a secret program of moving terror detainees to nations where they were imprisoned and, in some cases, reportedly tortured.
The document is one of nine made public Monday detailing the Bush administrations expansive definition of presidential power.
When the memo was written on March 13, 2002, the White House legal office had already decided that al-Qaida and Taliban detainees were not protected by the Geneva Conventions, the international treaty the governs the treatment of prisoners of war.
The Obama White House is reviewing the entire detention and rendition program.
CIA Director Leon Panetta has said the United States will continue to engage in extraordinary rendition but will use it rarely and will be more selective about the countries prisoners are sent to. Some of the prisoners who have been transferred by the United States to other countries claim they were tortured.
The memo on extraordinary rendition, written by Jay S. Bybee, then assistant attorney general in the office of legal counsel, further said that prisoners held outside the United States were not protected by U.S. laws against torture, nor against an international treaty banning torture.
The Bybee memo also said that a 1998 law making it U.S. policy not to hand over prisoners to country where they may be tortured was invalid because it unconstitutionally interferes with presidential powers.
However, the possibility that prisoners might be tortured after a transfer to another government outside the criminal justice system appeared to be on the minds of George W. Bushs White House lawyers. The memo suggested ways to U.S. officials could transfer prisoners to countries where they may indeed be tortured without making them legally liable for their treatment.
“To fully shield our personnel from criminal liability, it is important that the United States not enter in an agreement with a foreign country, explicitly or implicitly, to transfer a detainee to that country for the purpose of having the individual tortured,” Bybee wrote.
“So long as the United States doe not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer even if the foreign country receiving the detainee does torture him,” he wrote.
Jameel Jaffer, director of the American Civil Liberties Unions national security project, said the memo, taken with the others released Monday, shows the White House used the war on terror to claim broad powers.
“These memos were meant to provide the president with a blank check with respect to the rights of not only prisoners overseas but people in the United States as well,” he said.
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