Documents By Chronology:
The attacks on September 11, 2001 were the catalyst for the "war on terror"– and for a legal revolution in assertions of broad powers for the Commander-in-Chief. In this chronological library of 34 documents, it is possible to chart the decision-making that led to interrogations of prisoners in U.S. custody that were "at a minimum, cruel and inhuman treatment and, at worst, torture," in the words of the former general counsel of the United States Navy, Alberto Mora.
1. Declaration of National Emergency
DATE: September 14, 2001
SUBJECT: Declaration of National Emergency by Reason of Certain Terrorist Attacks
AUTHOR: President George W. Bush
President Bush signs a military order declaring a national emergency.
2. Memo from John Yoo to Tim Flanigan
DATE: September 25, 2001
SUBJECT: The President's Constitutional Authority to Conduct Military Operations Against Terrorist and Nations Supporting Them
AUTHOR: John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel
This memo lays out an expansive vision of presidential power, arguing that Congress cannot "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."
3. Memorandum from John Yoo to David S. Kris
DATE: September 25, 2001
SUBJECT: Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches
AUTHOR: John Yoo, Deputy Assistant Attorney General, OLC
In this opinion, Yoo discussed possible changes to the laws governing wiretaps for intelligence gathering, and signaled that the government's interest in keeping the nation safe following the terrorist attacks might justify warrantless searches.
4. Memorandum from John Yoo & Robert J. Delahunty to Alberto Gonzales & William J. Haynes
DATE: October 23, 2001
SUBJECT: Authority for Use of Military Force to Combat Terrorist Activities within the United States
AUTHOR: John Yoo, Deputy Assistant Attorney General, OLC & Robert J. Delahunty, Special Counsel, OLC
The United States, it was argued, was in a “state of armed conflict.” The scale of violence, the authors added, was unprecedented and “legal and constitutional rules” governing law enforcement – such as the Fourth Amendment prohibition on "unreasonable" searches and seizures did not apply. "The President has both constitutional and statutory authority to use the armed forces in military operations, against terrorists, within the United States."
The authors added that, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.”
5. Memorandum from Patrick Philbin to Alberto Gonzales
DATE: November 6, 2001
SUBJECT: Legality of the Use of Military Commissions to Try Terrorists
AUTHOR: Patrick Philbin, Deputy Assistant Attorney General
A legal opinion issued just a week before President Bush signed an order establishing military commissions to try prisoners who were deemed enemy combatants. In 2006, the Supreme Court ruled – in Hamdan v. Rumsfeld – that those military commissions were inconsistent with the Uniform Code of Military Justice.
6. Military Commissions Order
DATE: November 13, 2001
SUBJECT: "Detention, Treatment, and Trial of Certain Non-Citizens in the War on Terrorism"
AUTHOR: President George W. Bush
This military order declares the Commander-in-Chief's unilateral authority to hold prisoners in the war on terror indefinitely.
7. Memo from John Yoo to Jim Haynes
DATE: December 28, 2001
SUBJECT: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba
AUTHOR: John Yoo & Patrick Philbin, Deputy Assistant Attorneys General, Office of Legal Counsel
This memo concludes that federal district courts would lack jurisdiction to accept habeas petitions from prisoners who were held at Guantanamo.
8. Amnesty International Letter to Secretary of Defense Rumsfeld
DATE: January 7, 2002
SUBJECT: N/A
AUTHOR: Irene Khan, Secretary General of Amnesty International
The president of Amnesty International writes an urgent letter concerning detainees in U.S. custody, warning against the "cruel, inhuman or degrading treatment or punishment," noting hooding and blindfolding detainees is a violation of the Convention Against Torture.
9. Memo from John Yoo to Jim Haynes
DATE: January 9, 2002
SUBJECT: "Application of Treaties and Laws to Al Qaeda and Taliban Detainees"
AUTHOR: John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel
In this memo, Yoo writes "We conclude that these treaties [including Geneva] do not protect members of the al Qaeda organization. We further conclude that that [sic] these treaties do not apply to the Taliban militia."
10. Memo from William Taft to John Yoo
DATE: January 11, 2002
SUBJECT: "Your Draft Memorandum of January 9th"
AUTHOR: William Taft IV, Legal Adviser to the State Department
Describing Yoo's legal analysis as "seriously flawed," the memorandum also warns that "this raises the risk of future criminal prosecution for U.S. civilian and military leadership and their advisers."
11. Memo from Donald Rumsfeld to Joint Chiefs of Staff
DATE: January 19, 2002
SUBJECT: "Status of Taliban and al Qaeda"
AUTHOR: Donald Rumsfeld, Secretary of Defense
Secretary Rumsfeld declares that "The United States has determined that Al Qaida and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949."
12. Memo from Jay Bybee to Jim Haynes
DATE: January 22, 2002
SUBJECT: "Application of Treaties and Laws to Al Qaeda and Taliban Detainees"
AUTHOR: Jay Bybee, Assistant Attorney General, Office of Legal Counsel
Jay Bybee signs off on John Yoo's January 9th draft, sending it in its final form to Pentagon General Counsel Jim Haynes and White House Counsel Alberto Gonzales. The memo explains that "certain deviations from the text of Geneva III may be permissible, as a matter of domestic law, if they fall within certain justifications or legal exceptions, such as those for self defense."
13. Memo from Alberto Gonzales to President Bush
DATE: January 25, 2002
SUBJECT: "Application of the Geneva Convention on Prisoners of War to the Conflict with al Qaeda and the Taliban"
AUTHOR: Alberto Gonzales, White House Counsel
This memo for the President outlines the benefits of opting out of the Geneva Conventions and lists the benefits of such a finding. Gonzales notes that non-compliance with Geneva "would create a reasonable basis in law that Section 2441 [War Crimes Act] does not apply, which would provide a solid defense to any future prosecution."
14. Memo from Colin Powell to Alberto Gonzales
DATE: January 26, 2002
SUBJECT: Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan
AUTHOR: Colin Powell, Secretary of State
Colin Powell warns of the consequences of opting out of the Geneva Convention. "It will reverse over a century of U.S. policy . . . and undermine the prosecutions of the law of war for our troops . . ." He adds, "it may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops."
15. Letter from John Ashcroft to President Bush
DATE: February 1, 2002
SUBJECT: N/A
AUTHOR: John Ashcroft, Attorney General
John Ashcroft concludes that opting out of Geneva "would provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct or interrogation of detainees."
16. Memo from Jay Bybee to Alberto Gonzales
DATE: February 7, 2002
SUBJECT: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949
AUTHOR: Jay Bybee, Assistant Attorney General, Office of Legal Counsel
In this memo, Jay Bybee states that the President has the power to ignore Geneva's requirement that prisoners be given "Article 5" hearings to establish their status as POWs. "The President. may use his constitutional power to interpret treaties and apply them to the facts, to make the determination that the Taliban are unlawful combatants.. We therefore conclude that there is no need to establish tribunals to determine POW status under Article 5."
17. Memo from President Bush to Vice President, Secretary of State, Secretary of Defense, et. al.
DATE: February 7, 2002
SUBJECT: Humane Treatment of al Qaeda and Taliban Detainees
AUTHOR: President George W. Bush
President George W. Bush declares that the United States will not be bound by the Geneva Convention's protections for prisoners of war.
18. Memo from Jay Bybee to Jim Haynes
DATE: February 26, 2002
SUBJECT: "Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan"
AUTHOR: Jay Bybee, Assistant Attorney General, Office of Legal Counsel
In the wake of the capture of the "American Taliban" John Walker Lindh, questions about the rights of American citizens captured in the war on terror became a new issue. In conclusion, Bybee notes "even if the Government did in fact violate Rule 4.2 by having military lawyers interrogate represented persons (including Mr. Walker) without consent of counsel, it would not follow that the evidence obtained in that questioning would be inadmissible at trial."
19. Memorandum from Jay Bybee to William J. Haynes
DATE: March 13, 2002
SUBJECT: The President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations
AUTHOR: Jay S. Bybee, Assistant Attorney General, OLC
This memorandum appears to underpin the so-called "extraordinary rendition" program. It argues that the President has an unfettered right to transfer prisoners captured in the war on terror to governments around the world without regard for whether they would be tortured.
It further argues that "so long as the US does not intend for a detainee to be tortured post-transfer…no criminal liability will attach to a transfer, even if the foreign country receiving the detainee does torture him."
20. Memorandum from Patrick F. Philbin to Daniel J. Bryant
DATE: April 8, 2002
SUBJECT: Swift Justice Authorization Act
AUTHOR: Patrick Philbin, Deputy Assistant Attorney General, OLC
The author concludes that Congress cannot interfere with the President's exercise of his authority as Commander-in-Chief to control the conduct of operations during war, including his authority to promulgate rules to regulate military commissions.
21. Memorandum from Jay Bybee to John Ashcroft
DATE: June 8, 2002
SUBJECT: Determination of Enemy Belligerency and Military Detention
AUTHOR: Jay S. Bybee, Assistant Attorney General, OLC
Arguing that “the military has the legal authority to detain (Jose Padilla) as a prisoner captured during an international armed conflict,” this opinion was issued one day before Padilla – an American citizen arrested on American soil – was designated an “enemy combatant.”
The authors further concluded that the 1878 Posse Comitatus Act that had long limited the powers of the government to use the US military for law enforcement within the United States could be suspended; it “presents no statutory bar” to Padilla’s military imprisonment.
22. Memo from Jay Bybee to Alberto Gonzales
DATE: August 1, 2002
SUBJECT: "Standards for Conduct for Interrogation under 18 U.S.C. 2340 - 2340A"
AUTHOR: Jay Bybee, Assistant Attorney General, Office of Legal Counsel
In what has become notorious as the "torture memo," Jay Bybee signs off on an opinion authored by John Yoo. The memorandum systematically dismisses numerous U.S. federal laws, treaties and international law prohibiting the use of torture, essentially defining the term out of existence.
23. Letter from John Yoo to Alberto Gonzales
DATE: August 1, 2002
SUBJECT: N/A
AUTHOR: John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel
John Yoo writes to White House Counsel Alberto Gonzales warning of potential threats of international prosecution regarding the administration's interrogation policies. Yoo notes that "Interrogations of al Qaeda members ... cannot constitute a war crime" because of the Presidential determination that Geneva's protections do not apply.
24. Memo from Jay Bybee to the CIA
DATE: August 1, 2002
SUBJECT: Memorandum for [REDACTED] Interrogation of [REDACTED]
AUTHOR: Jay Bybee, Assistant Attorney General, Office of Legal Counsel
Written by the Office of Legal Counsel's Jay Bybee and sent to the Central Intelligence Agency, this heavily redacted document was released to the ACLU in 2008. It details "advising the CIA regarding interrogation methods it may use against al Qaeda members," and in one un-redacted portion, argues that "to violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Based on the information you have provided us, we believe those carrying out these procedures would not have the specific intent to inflict severe pain or suffering."
25. Guantanamo Trip Report
DATE: September 27, 2002
SUBJECT: Trip Report, DOD General Counsel Visit to GTMO
AUTHOR: Office of the Staff Judge Advocate
A one page summary of Pentagon General Counsel Jim Haynes, and Vice President Cheney's legal counsel David Addington's trip to Guantanamo on September 25, 2002. The report notes that their stated purpose was to "receive briefings on Intel successes, Intel challenges, Intel techniques, Intel problems and future plans for facilities."
26. Guantanamo Meeting Minutes
DATE: October 2, 2002
SUBJECT: Counter Resistance Strategy Meeting Minutes
AUTHOR: N/A
A senior CIA lawyer meets with military officials at Guantanamo, and states that laws banning torture are "basically subject to perception. If the detainee dies, you're doing it wrong." The Pentagon's top legal adviser at the camp responds, "We will need documentation to protect us." When the military's top criminal investigator reads the minutes, he forwards them to other senior personnel, noting "This looks like the kind of stuff Congressional hearings are made of." Waterboarding, for example, would "shock the conscience of any legal body looking at the results of the interrogations or possibly even the interrogators. Somebody needs to be considering how history will look back at this."
27. Memo from Major General Michael Dunlavey
DATE: October 11, 2002
SUBJECT: "Counter-Resistance Strategies"
AUTHOR: Major General Michael Dunlavey
General Michael Dunlavey sends a formal request for approval of harsh interrogation techniques based on SERE up the chain of command to General James T. Hill, commander of USSOUTHCOM. The most extreme "Category III" techniques mirror "those used in U.S. military interrogation resistance training or by other US government agencies."
28. Memo from General James T. Hill
DATE: October 25, 2002
SUBJECT: "Counter-Resistance Strategies"
AUTHOR: General James T. Hill
General James Hill, commander of USSOUTHCOM, forwards the request to the Chairman of the Joint Chiefs, but worries that, "I am particularly troubled by the use of implied or expressed threats of death of the detainee or his family."
29. Action Memo from Jim Haynes to Donald Rumsfeld
DATE: November 27, 2002
SUBJECT: "Counter-Resistance Techniques"
AUTHOR: William J. Haynes, General Counsel, Department of Defense
Secretary Rumfeld's General Counsel Jim Haynes, sends an "action memo" for the Secretary's signature advising Rumsfeld to approve a list of harsh interrogation techniques. On December 2, 2002 Rumsfeld signs off, and authorizes all the Category I & II techniques, including 20 hour interrogations, deprivation of light and auditory stimuli, removal of clothing, the use of phobias such as dogs, and stress positions for up to four hours. Haynes notes that Category III techniques, including waterboarding, "may be legally available" but "as a matter of policy a blanket approval. is not warranted at this time." As Secretary Rumsfeld signs the action memo, he adds a post-script "I stand for 8-10 hours a day. Why is standing limited to 4 hours?"
30. FBI Legal Analysis
DATE: November 27, 2002
SUBJECT: Legal Analysis
AUTHOR: N/A
An FBI agent warns his superiors that several of the techniques being considered "are not permitted by the U.S. constitution" and others are "examples of coercive interrogation techniques that may violate 18 U.S.C. § 2340 (Torture Statute)."
31. Draft Guantanamo SERE SOP
DATE: December 10, 2002
SUBJECT: JTF GTMO "SERE" Interrogation Standard Operating Procedure
AUTHOR: Lt. Col. Ted Moss
This draft memo, never before released in its entirety, directly links the tactics being used at Guantanamo to the U.S. military's torture resistance training: "These tactics and techniques are used in SERE school to 'break' SERE detainees. The same tactics and techniques can be used to break real detainees during interrogation operations."
32. SERE Instructors' Guantanamo Report
DATE: January 15, 2003
SUBJECT: After Action Report Joint Task Force Guantanamo Bay (JTF-GTMO) Training Evolution
AUTHOR: John F. Rankin, SERE Training Specialist & Christopher Ross, SERE Coordinator
Responding to a "high level directive," two SERE instructors travel to Guantanamo, where they lead a class of 24 Guantanamo interrogators on the use of SERE techniques based on "Biderman's Principles." Principles include death threats, degradation, and "induced debilitation."
33. Memo from Donald Rumsfeld
DATE: January 15, 2003
SUBJECT: "Counter Resistance Techniques"
AUTHOR: Donald Rumsfeld, Secretary of Defense
Secretary of Defense Donald Rumsfeld rescinds his authorization of the Category II and III techniques authorized by his December 2, 2002 order.
34. Memo from Donald Rumsfeld Establishing Working Group
DATE: January 15, 2003
SUBJECT: Detainee Interrogations
AUTHOR: Donald Rumsfeld, Secretary of Defense
Secretary Rumsfeld orders a Working Group comprised of senior military lawyers to study the legality of various interrogation techniques.
35. The JAG Memos
DATE: February 5 - March 13, 2003
SUBJECT: N/A
AUTHORS: Military Judges Advocate General
Top military lawyers in the Working Group issue a series of vigorous dissents to many of the proposed techniques being discussed.
36. Memo from John Yoo to Jim Haynes
DATE: March 14, 2003
SUBJECT: Military Interrogation of Alien Unlawful Combatants Held Outside the United States
AUTHOR: John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel
Written at the request of DoD General Counsel William Haynes, the memo is an expansion of John Yoo's August, 2002 "torture memo" and lays out in more expansive detail what would be permitted under the administration's interrogation policy. Haynes makes it clear that the memo is the "controlling authority" for the Working Group.
37. Working Group Report
DATE: April 4, 2003
SUBJECT: "Working Group Report on Detainee Interrogations in the Global War on Terrorism"
AUTHOR: N/A
The report of the Working Group on interrogation policy is signed out. In 85-pages, it endorses a series of 35 interrogation techniques including "fear up harsh," "emotional love," "emotional hate," "hooding," and "sleep adjustment." Though it is signed out in their names, members of the Working Group were not informed of its final contents.
38. Memo from Donald Rumsfeld
DATE: April 16, 2003
SUBJECT: "Counter-Resistance Techniques in the War on Terrorism"
AUTHOR: Donald Rumsfeld, Secretary of Defense
Rumsfeld issues a memorandum to the commander of US Southern Command authorizing 24 of the 35 techniques for use at Guantanamo.
39. Interrogation "Wish List" E-mail
DATE: August 14, 2003
SUBJECT: N/A
AUTHOR: N/A
This memo issued by a U.S. Army military intelligence officer requests that interrogators come up with a "wish list" of interrogation techniques for use in Iraq. The memo notes, "The gloves are coming off gentleman regarding these detainees. [REDACTED] has made it clear that we want these individuals broken." Responding, another interrogator suggests, "... a baseline interrogation technique that at a minimum allows for physical contact resembling that used by SERE instructors. Sleep deprivation. Fear of dogs and snakes appear to work nicely. I firmly agree that the gloves need to come off."
40. Memo from General Sanchez
DATE: September 14, 2003
SUBJECT: "CJTF-7 Interrogation and Counter Resistance Policy"
AUTHOR: General Ricardo Sanchez, Commander of US Forces in Iraq
General Ricardo Sanchez issues guidelines for the interrogation of Iraqi detainees. The techniques he authorizes are almost a verbatim copy of those authorized for Guantanamo by Secretary Rumsfeld in April, 2003.
41. Memorandum from Jack Goldsmith to Alberto Gonzales
DATE: March 18, 2004
SUBJECT: “Protected Person” Status in Occupied Iraq under the Fourth Geneva Convention
AUTHOR: Jack L. Goldsmith III, Assistant Attorney General
Written by the new head of the Office of Legal Counsel, the opinion declared that the Geneva Conventions protected “citizens and permanent residents of Iraq,” including those “who commit hostile acts against the occupying power.” This opinion provoked the ire of the Vice President’s general counsel, David Addington, an incident described in detail in “The Terror Presidency” by Goldsmith.
42. Memorandum "for the files"
DATE: October 6, 2008
SUBJECT: John Yoo’s October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities
AUTHOR: Steven G. Bradbury, Principal Deputy Assistant Attorney General, OLC
This memorandum repudiates John Yoo's secret October 23, 2001 opinion asserting that the First Amendment and the Fourth Amendment of the Constitution must give way when the President deems it necessary in defense of the nation.
43. Testimony of Spc. Brandon Neely
DATE: December 4, 2008
SUBJECT: Conditions at Guantanamo
AUTHOR: Center for the Study of Human Rights in the Americas
On December 4, 2008, Specialist Brandon Neely approached CSHRA with testimony he wished to contribute to the Guantánamo Testimonials Project. He believed that insufficient attention had been paid to 'the hell that went on at Camp X-Ray.'"
44. Executive Summary, Senate Armed Services Committee
DATE: December 11, 2008
SUBJECT: Inquiry into the Treatment of Detainees in U.S. Custody
AUTHOR: Senate Armed Services Committee
In December, 2008, the Senate Armed Services Committee completed a classified 250-page report outlining its 18-month investigation into U.S. detention and interrogation policies. The report’s Executive Summary concludes that “(t)he abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."
Senator John McCain, ranking Republican on the Committee, added, “The Committee’s report details the inexcusable link between abusive interrogation techniques used by our enemies who ignored the Geneva Conventions and interrogation policy for detainees in U.S. custody.”
45. Memorandum "for the files"
DATE: January 15, 2009
SUBJECT: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001
AUTHOR: Steven G. Bradbury, Principal Deputy Assistant Attorney General, OLC
Stating that “certain propositions stated in several opinions issued by the Office Legal Counsel from 2001 – 2003 respecting the allocation of authorities between the President and Congress in matters of war and national security do not reflect the current views of this Office,” this memorandum disowns the broad claims of constitutional law reflected in the OLC opinions. It does not comment upon or disown the specific policies regarding surveillance, detention and interrogation.
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