OLC Memo Authorized Torture of U.S. Prisoners Held on Foreign Soil

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Monday, March 02, 2009 at 4:47 pm

Despite the longstanding prohibition on torture, the U.N. Convention Against Torture (which the United States has ratified) and the Geneva Conventions, the Office of Legal Counsel under President George W. Bush determined in March 2002 that the president may transfer any prisoner captured abroad to a foreign country where he will be tortured.

But the 2002 memorandum (pdf) — one of seven nine previously undisclosed Bush-era OLC documents released today by the Justice Department — goes further than simply sanctioning the so-called “extraordinary rendition” program that we already knew about. The memo concludes that there is no legal impediment to torturing suspects held abroad – even if they are in U.S. custody, such as at the U.S. prisons at Guantanamo Bay or Bagram air base in Afghanistan.

“The Geneva Conventions do not apply,” wrote former OLC attorney Jay Bybee to Pentagon General Counsel William Haynes, “because the President has determined that the al Qaeda or Taliban detainees are not legally entitled to prisoner of war (“POWs”) status within the meaning of the Conventions.”  Moreover, the memo continues, “The Torture Convention poses no obstacle to transfer [for the purposes of interrogation under torture] because the treaty does not apply extraterritorially.”

In other words, because the suspects are abducted abroad and not within the United States, the United States can violate the Torture Convention altogether, so long as the suspects do not enter the United States.

The memo goes even further: “As removal applies only to the transfer of individuals already within the territorial jurisdiction of the United States, and as extradition rarely if ever applies to individuals held abroad, those methods of transfer do not apply to the detainees held either in Afghanistan or at the U.S. Naval Base at Guantanamo Bay, Cuba.”

Although the memo doesn’t prove that U.S. officials actually did torture prisoners at Guantanamo Bay, Bagram or elsewhere, it appears to give the clear legal authorization to do so.

Waterboarding may have been the least of it.

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