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• Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs: Re: Swift Justice Authorization Act [April 8, 2002]

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  This document from the Office of Legal Counsel within the Justice Department addresses proposed legislation that would seek to set military tribunal standards for the President to follow. "This memorandum sets forth the views of the Office of Legal Counsel with regard to legislation Proposed by Senator Patrick Leahy, entitled the Swift Justice Authorization Act ('SJAA'). The proposed legislation purports to vest 1he President with limited authority to order our Armed Forces to detain certain individuals involved in terrorist acts and to establish military commissions to try those individuals for violations of the laws of war. It also specifies procedural requirements that such military tribunals must meet. [...] The legislation suffers from a number of serious constitutional defects. First, the President's authority as Commander in Chief under Article II of the Constitution to engage the Armed Forces in hostile military operations includes the power both to detain enemy combatants and to convene military commissions to punish violators of the laws of War. Legislation expressly granting the President such powers is constitutionally unnecessary. The fundamental premise underpinning the first substantive objective of the legislation - namely, 'authorizing' the President to convene military commissions - is thus mistaken. And to the extent the legislation, by purporting to authorize the President to convene commissions, maybe taken to suggest that the President could not act without such authorization, it raises a serious constitutional issue because it would impermissibly encroach on the President's powers as Commander in Chief."

  United States. Department of Justice. Office of Legal Counsel

  Philbin, Patrick F.

  2002-04-08
• Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs: Re: Applicability to 18 U.S.C. § 4001(a) to Military Detention of United States Citizens [June 27, 2002]

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  This Justice Department Office of Legal Counsel memorandum discusses the President's authority to transfer U.S. citizens to military detention based on their status as enemy combatants. "You have asked us whether the detention of United States citizens as enemy belligerents by the U.S. Armed Forces violates 18 U.S.C. § 4001(a)(2000). We understand that the question has arisen in briefings before the Senate Judiciary Committee and the Senate Select Committee on Intelligence concerning the recent transfer of Jose Padilla, aka Abdullah al Mujahir, from the custody of the Department of Justice to the control of the Department of Defense. [...] As we explain below, the President's authority to detain enemy combatants including U.S. citizens. is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) does not, and constitutionally could not interfere with that authority."

  United States. Department of Justice. Office of Legal Counsel

  Yoo, John

  2002-06-27
• Memorandum to the Attorney General, Determination of Enemy Belligerency and Military Detention

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  This Justice Department memorandum addresses the detention of Jose Padilla, an American citizen, by the United States military. "You have asked our opinion whether you should recommend to the Secretary of Defense that Jose Padilla, aka 'Abdullah Al Muhair,' qualifies as an enemy combatant under the laws of armed conflict, and whether he may be detained by the United States Armed Forces. Based on the facts provided to us by the Criminal Division, we conclude that the military has the legal authority to detain him as a prisoner captured during an international armed conflict. Additionally, we conclude that the Posse Comitatus Act, 18 USC § 1385 (1994), poses no bar to the military's operations in detaining Padilla The facts provided to us show that Padilla, who is a US citizen. is associated with al Qaeda, the terrorist organization that launched the attacks of September 11, 2001, and that he recently entered the United States as part of plot to commit acts of sabotage that might have resulted in massive loss of life We conclude that Padilla is properly considered an enemy combatant and may be turned over to military authorities for detention as an unlawful enemy combatant "

  United States. Department of Justice. Office of Legal Counsel

  Bybee, Jay S.

  2002-06-08
• Memorandum for the Files: Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 [January 15, 2009]

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  "The purpose of this memorandum is to confirm that certain propositions stated in several opinions issued by the Office of Legal Counsel [OLC] in 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. We have previously withdrawn or superseded a number of opinions that depended upon one or more of these propositions. For reasons discussed herein, today we explain why these propositions are not consistent with the current views of OLC, and we advise that caution should be exercised before relying in other respects on the remaining opinions identified below. The opinions addressed herein were issued in the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation. In the months following 9/11, attorneys in the Office of Legal Counsel and in the Intelligence Community confronted novel and complex legal questions in a time of great danger and under extraordinary time pressure. Perhaps reflecting this context, several of the opinions identified below do not address specific and concrete policy proposals, but rather address in general terms the broad contours of legal issues potentially raised in the uncertain aftermath of the 9/11 attacks. Thus, several of these opinions represent a departure from this Office's preferred practice of rendering formal opinions addressed to particular policy proposals and not undertaking a general survey of a broad area of the law or addressing general or amorphous hypothetical scenarios involving difficult questions of law."

  United States. Department of Justice. Office of Legal Counsel

  Bradbury, Steven G., 1958-

  2009-01-15
• Legal Standards Applicable Under 18. U.S.C. §§ 2340-2340A, Memorandum Opinion for the Deputy Attorney General, [December 30, 2004]

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  This document from the Department of Justice's Office of Legal Counsel discusses a reinterpretation of a prior legal opinion regarding torture. "Torture is abhorrent both to American law and values and to international norms. This universal repudiation of torture is reflected in our criminal law, for example, 18 U.S.C. §§ 2340-2340A; international agreements, exemplified by the United Nations Convention Against Torture (the 'CAT'); customary international law; centuries of Anglo-American law ; and the longstanding policy of the United States, repeatedly and recently reaffirmed by the President. This Office interpreted the federal criminal prohibition against torture [...]. The August 2002 Memorandum also addressed a number of issues beyond interpretation of those statutory provisions, including the President's Commander-in-Chief power, and various defenses that might be asserted to avoid potential liability under sections 2340-2340A. See id. at 31-46. Questions have since been raised, both by this Office and by others, about the appropriateness and relevance of the non-statutory discussion in the August 2002 Memorandum, and also about various aspects of the statutory analysis, in particular the statement that 'severe' pain under the statute was limited to pain 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.' Id. at 1. We decided to withdraw the August 2002 Memorandum, a decision you announced in June 2004. At that time, you directed this Office to prepare a replacement memorandum. Because of the importance of--and public interest in--these issues, you asked that this memorandum be prepared in a form that could be released to the public so that interested parties could understand our analysis of the statute."

  United States. Department of Justice. Office of Legal Counsel

  Levin, Daniel B., 1956-

  2004-12-30
• Memorandum for Alberto R. Gonzales, Counsel to the President: Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 [February 7, 2002]

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  This opinion from the Department of Justice's Office of Legal Counsel discusses how prisoners captured from the Taliban should be held under international and domestic laws. "You have asked for our Office's views concerning the status of members of the Taliban militia under Article 4 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War ('GPW'). Assuming the accuracy of various facts provided to us by the Department of Defense ('DoD'), we conclude that the President has reasonable factual grounds to determine that no members of the Taliban militia are entitled to prisoner of war ('POW') status under GPW. First, we explain that the Taliban militia cannot meet the requirements of Article 4(A)(2), because it fails to satisfy at least three of the four conditions of lawful combat articulated in Article 1 of the Annex to the 1907 Hague Convention (N) Respecting the Laws and Customs of War on Land ('Hague Convention'), which are expressly incorporated into Article 4(A)(2). Second, we note that neither Article 4(A)(I) nor Article 4(A)(3) apply to militia, and that the four conditions of lawful combat contained in the Hague Convention also govern Article 4(A)(l) and (3) determinations in any case. Finally, we explain why there is no need to convene a tribunal under Article 5 to determine the status of the Taliban detainees."

  United States. Department of Justice. Office of Legal Counsel

  Bybee, Jay S.

  2002-02-07
• Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees [May 30, 2005]

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  This U.S. Department of Justice, Office of Legal Counsel Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency, was recently declassified and discusses the legality of torture and interrogations techniques. The following is taken from the memo: "You have asked us to address whether certain 'enhanced interrogation techniques' employed by the Central Intelligence Agency ('CIA') in the interrogation of high value al Qaeda detainees are consistent with United States obligations under Article 16 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 102 1984, S. Treaty Doc. No. lOO-20, 1465 U.N.T.S. 85 (entered into force for U.S. Nov. 20, 1994) ('CAT'). We conclude that use of these techniques subject to the CIA's careful screening criteria and limitations and its medical safeguards, is consistent with United States obligations under Article 16. By its terms, Article 16 is limited to conduct within 'territory under [United States] jurisdiction.' We conclude that territory under United States jurisdiction includes, at most, areas over which the United States exercises at least de facto authority as the government. Based on CIA assurances, we understand that the interrogations do not take place in any such areas. We therefore conclude that Article 16 is inapplicable to the CIA's interrogation practices and that those practices thus cannot violate Article 16. Further, the United States undertook its obligations under Article 16 subject to a Senate reservation, which as relevant here, explicitly limits those obligations to 'the cruel, unusual and inhumane treatment... prohibited by the Fifth Amendment...to the Constitution of the United States.' There is a strong argument that through this reservation the Senate intended to limit the scope of United States obligations under Article 16 to those imposed by the relevant provisions of the Constitution. As construed-by the courts, the Fifth Amendment does not apply to aliens outside the United States."

  United States. Department of Justice. Office of Legal Counsel

  Bradbury, Steven G., 1958-

  2005-05-30
• Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, Re: Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees [May 10, 2005]

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  This U.S. Department of Justice, Office of Legal Counsel Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency was recently declassified and discusses the legality of torture and interrogations techniques. The following is taken from the memo: "In our Memorandum for John A, Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G, Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel Re: Application of 18 U.S, C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee (May 10, 2005)('Techniques'), we addressed the application of the anti-torture statute, 18 U.S.C, §§ 2340- 2340A, to certain interrogation techniques that the CIA might use in the questioning of a specific a1 Qaeda operative. There, we considered each technique individually. We now consider the application of the statute to the use of these same techniques in combination. Subject to the conditions and limitations set out here and in Techniques, we conclude that the authorized combined use of these specific techniques by adequately trained interrogators would not violate sections 2340-2340A. Techniques, which set, out our general interpretation of the statutory elements, guides us here. While referring to the analysis provided in that opinion, we do not repeat it, but instead presume a familiarity with it. Furthermore, in referring to the individual interrogation techniques whose combined use is our present subject, we mean those techniques as we described them in Techniques, including all of the limitations, presumptions, and safeguards described there."

  United States. Department of Justice. Office of Legal Counsel

  Bradbury, Steven G., 1958-

  2005-05-10
• Authority of the Deputy Attorney General Under Executive Order 12333, Memorandum Opinion for the Associate Deputy Attorney General [November 5, 2001]

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  This memorandum from the Justice Department's Office of Legal Counsel deals with the powers that the Deputy Attorney General possesses. "You have asked for our opinion whether the Deputy Attorney General has the authority to grant approvals under section 2.5 of Exec. Order No.12333, 3 C.F.R. 200 (1981 Comp.). We believe that he does. Executive Order No. 12333 addresses the conduct of intelligence activities. Section 2.5 provides: The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such technique shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978 ['FISA'], shall be conducted in accordance with that Act, as well as this Order. Under the Department's regulations, the Deputy Attorney General 'is authorized to exercise all the power and authority of the Attorney General, unless any such power or authority is required by law to be exercised by the Attorney General personally.' 28 C.F.R. § 0.15(a) (2000). That regulation rests on the Attorney General's statutory authority to 'make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.' 28 U.S.C. § 510 (1994). Consequently, the Deputy Attorney General may exercise the Attorney General's power under section 2.5 of the Executive Order, unless by law the Attorney General must exercise that power personally."

  United States. Department of Justice. Office of Legal Counsel

  Yoo, John

  2001-11-05
• Legality of the Use of Military Commissions to Try Terrorists, Memorandum Opinion for the Counsel to the President [November 6, 2001]

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  This memorandum from the Office of Legal Counsel of the Department of Justice addresses the question of legality surrounding the use of military commissions to try terrorism suspects. "You have asked us to consider whether terrorists captured in connection with the attacks of September 11 or in connection with ongoing U.S. operations in response to those attacks could be subject to trial before a military court. The Uniform Code of Military Justice ('UCMJ'), 10 U.S.C. §§ 801-946, authorizes military commissions to try 'offenders or offenses that by statute or by the law of war may be tried by military commissions.' 10 U.S.C. § 821 (2000). The Supreme Court has interpreted identical language (then included in Article 15 of the Articles of War in effect during World War II) to incorporate customary practice and to authorize trial by military commission of any person subject to the laws of war for any offense under the laws of war. See Ex parte Quirin, 317 U.S. 1, 30 (1942). We conclude that under 10 U.S.C. § 821 and his inherent powers as Commander in Chief, the President may establish military commissions to try and punish terrorists apprehended as part of the investigation into, or the military and intelligence operations in response to, the September 11 attacks."

  United States. Department of Justice. Office of Legal Counsel

  2001-11-06
• Memorandum for David S. Kris, Associate Deputy Attorney General: Re: Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the 'Purpose' Standard for Searches [September 25, 2001]

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  "You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1811 (1994 & West Supp, 2000 ('FlSA') so that a search may be approved when the collection of foreign intelligence is 'a purpose' of the search. In its current form, FISA requires that 'the purpose' of the search be the collection of foreign intelligence, 50 U.S.C. § 1804(a)(7)(B). We believe that this amendment would not violate the Fourth Amendment. It should be made clear at the outset that the proposed FISA amendment cannot cause a facial violation of the Fourth Amendment. Because 'a' purpose would include the current warrant applications in which foreign intelligence is 'the' purpose of the search, a significant class of valid searches would continue to fall within the new statutory language. It may be the case that some warrant applications - for example, those instances where criminal investigation constitutes an overwhelming purpose of the surveillance - will be rejected by the FISA court. In those situations, the FISA amendment would not be unconstitutional, so much as the Court would be construing the statute, according to the canon that statutes are to bread to avoid constitutional problems, so as not to require the issuance of a warrant that would go beyond the Fourth Amendment. In other words, the proposed amendment cannot violate the Fourth Amendment because it would simply allow the Department to apply for FISA warrants up to the limit permitted by the Constitution, as determined by the FISA court. Amending FISA merely gives the Department the full flexibility to conduct foreign intelligence surveillance that is permitted by the Constitution itself."

  United States. Department of Justice. Office of Legal Counsel

  Yoo, John

  2001-09-25
• Memorandum for the Files: Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities [October 6, 2008]

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  "The purpose of this memorandum is to advise that caution should be exercised before relying in any respect on the Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel [OLC], Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23, 2001) ('10/23/01 Memorandum') as a precedent of the Office of Legal Counsel, and that certain propositions stated in the 10/23/01 Memorandum, as described below, should not be treated as authoritative for any purpose. It is important to understand the context of the 10/23/01 Memorandum. It was the product of an extraordinary - indeed, we hope, a unique - period in the history of the Nation: the immediate aftermath of the attacks of 9/11. Perhaps reflective of this context, the 10/23/01 Memorandum did not address specific and concrete policy proposals; rather it addressed in General terms the broad contours of hypothetical scenarios involving possible domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic terrorist attacks of 9/11. Thus, the 10/23/01 Memorandum represents a departure, although perhaps for understandable reason., from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law."

  United States. Department of Justice. Office of Legal Counsel

  Bradbury, Steven G., 1958-

  2008-10-06
• Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense: Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States [October 23, 2001]

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  This opinion from the Justice Department's Office of Legal Counsel addresses the use of U.S. military forces in counterterrorism operations on U.S. soil. "You have asked for our Office's views on the authority for the use of military force to prevent or deter terrorist activity inside the United States. Specifically, you have asked whether the Posse Comitatus Act, 18 U.S.C. § 1385 (1994), limits the ability of the President to engage the military domestically, and what constitutional standards apply to its use. We conclude that the President has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States. We further believe that the use of such military force generally is consistent with constitutional standards, and that it need not follow the exact procedures that govem law enforcement operations."

  United States. Department of Justice. Office of Legal Counsel

  Delahunty, Robert J.; Yoo, John

  2001-10-23
• Memorandum for William J. Haynes, II, General Counsel, Department of Defense, The President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations

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  "You have asked for our Office's views on the laws applicable to the transfer of members of the Taliban militia, al Qaeda, or other terrorist organizations, who have come under the control of the United States armed forces, to other countries. We conclude that the President has plenary constitutional authority, as the Commander in Chief, to transfer such individuals who are captured and held outside the United States to the control of another country. Individuals who are detained within the United States, however, may be subject to a more complicated set of rules established by both treaty and statute. Part I of this memorandum discusses the President's constitutional authority, supported by two centuries of historical practice, to detain and transfer enemy prisoners captured in wartime. It reviews the two relevant treaties that regulate transfer - the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316 ('GPW'), and the Torture Convention and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr. 18, 1987, 23 I.L.M. 1027 (entered into force June 26,1987) (the 'Torture Convention' or the 'Convention'), - and it explains that these conventions do not apply to the factual situation posed by the transfer of al Qaeda or Taliban prisoners to third countries. As you have requested, we also survey in Part II the domestic legal rules governing extradition, and in Part Ill the domestic standards that govern removal under the immigration laws."

  United States. Department of Justice. Office of Legal Counsel

  2002-03-13
• Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency: Re: Interrogation of al Qaeda Operative [August 1, 2002]

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  This U.S. Department of Justice, Office of Legal Counsel Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Aency, was recently declassified and discusses the legality of torture and interrogations techniques regarding Abu Zubaydah, an al-Qaeda Operative. The following is taken from the memo: "You have asked for this Office's views on whether certain proposed conduct would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code. You have asked for this advice in the course of conducting interrogations of Abu Zubaydah. As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda Terrorist organization, with which the United States is currently engaged in an international armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001. This letter memorializes our previous oral advice, given on July 24, 2002 and July 26, 2002, that the proposed conduct would not violate this prohibition. Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas."

  United States. Department of Justice. Office of Legal Counsel

  Bybee, Jay S.

  2002-08-01
• Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, Re: Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee [May 10, 2005]

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  This U.S. Department of Justice, Office of Legal Counsel Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency was recently declassified and discusses the legality of torture and interrogations techniques. The following is taken from the memo: "You have asked us to address whether certain specified interrogation techniques designed to be used on a high value al Qaeda detainee in the War on Terror comply with the federal prohibition on torture, codified at I8 U.S.C. §§ 234Q-2340A. Other analysis of this question is controlled by this Office's recently published opinion interpreting the anti-torture statute. See Memorandum for James R Comey, Deputy Attorney General, from Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, Re: Legal Standards Applicable Under 18U.S.C. §§ 2340-2340A (Dec. 30. 2004) ('2004 Legal Standards Opinion'), available at www.usdoj.gov. (We provided a copy of that opinion to you at the time it was issued.) Much of the analysis from our 2004 Legal Standards Opinion is reproduced below; all of it is incorporated by reference herein. Because you have asked us to address the application of sections 2340-2340A to specific interrogation techniques, the present memorandum necessarily includes additional discussion of the applicable legal standards and their application to particular facts. We stress, however, that the legal standards we apply in this memorandum are fully consistent with the interpretation of the statute set forth in our 2004 Legal Standards Opinion and constitute our authoritative view of the legal standards applicable under sections 2340- 2340A. Our task is to explicate those standards in order to assist you in complying with the law."

  United States. Department of Justice. Office of Legal Counsel

  Bradbury, Steven G., 1958-

  2005-05-10
• Memorandum for the Files: Re: Whether Persons Captured and Detained in Afghanistan are 'Protected Persons' Under the Fourth Geneva Convention [August 5, 2005]

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  "In May and June of 2004, we advised Pat Sullivan and David Nahmias of the Criminal Division that persons captured and detained in Afghanistan do not qualify for 'protected person' status under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365 ('GC,' the 'Fourth Convention,' or the 'Convention'). This memorandum memorializes our analysis and conclusions. Like the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364 ('GPW' or the 'Third Convention'), GC applies 'to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties,' art. 2(1) (or between powers that accept and apply its provisions, art. 2(3)), and to 'cases of partial or total occupation of the territory of a High Contracting Party,' art. 2(2). The President has previously determined that GPW applies to the armed conflict between the United States and the Taliban because Afghanistan is a High Contracting Party to that Convention. Memorandum from President George W. Bush to the Vice President, the Secretary of State, 'et al, Re: Humane Treatment of al Qaeda and Taliban Detainees' 2(b) (Feb. 7, 2002)."

  United States. Department of Justice. Office of Legal Counsel

  Nielson, Howard C., Jr.

  2005-08-05
• Memorandum for William J. Haynes II, General Counsel of the Department of the Defense: Re: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan [February 26, 2002]

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  "You have asked a series of questions concerning legal constraints that may potentially apply to interrogation of persons captured in Afghanistan. Several of the issues you have raised relate to the applicability of the Supreme Court's decision in 'Miranda v. Arizona', 384 U.S. 436 (1966), to interrogations that may be conducted for various purposes (and by various personnel) ranging from obtaining intelligence for military operations and force protection to investigating crimes with a view to bringing subsequent prosecutions. As explained below, the Self-incrimination Clause of the Fifth Amendment, as interpreted by the Supreme Court in 'Miranda', provides a trial right in a criminal prosecution before U.S. courts and governs the admissibility of statements made by the defendant in a custodial interrogation. The issue of the applicability of 'Miranda' and restrictions it may place on conduct in interrogations, therefore, is best addressed in the context of the subsequent use that is made of statements obtained in custodial interrogation. As we explain below, the Self-incrimination Clause (and hence 'Miranda') does not apply in the context of a trial by military commission for violations of the laws of war. Accordingly, military commissions may admit statements made by a defendant in a custodial interrogation conducted without 'Miranda' warnings. Therefore, to the extent that the only trial-related use of statements obtained in an interrogation will be before a military commission, there is no need to provide 'Miranda' warnings."

  United States. Department of Justice. Office of Legal Counsel

  2002-02-26
• Memorandum for Larry D. Thompson, Deputy Attorney General: Re: Memorandum from Alberto Gonzales to the President on the Application of the Geneva Convention to Al Qaeda and the Taliban [January 26, 2002]

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  " We have reviewed a memorandum dated January 25, 2002, from Alberto R. Gonzales to the President, 'Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict With Al Qaeda and the Taliban'. We have three comments on the memorandum. First, in the first bullet under the 'Legal Background' section, the memorandum, having referred to OLC's opinion, states that the grounds for determining that the Geneva Convention (GPW) does not apply to the Taliban may include: A determination that Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations (e.g., was in widespread material breach of its international obligations). […] Second, in the second main bullet on p. 2 ('Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act'), we would suggest changing this language to 'Substantially reduces the misapplication of the War Crimes Act.' Third, on p. 2, the next to last bullet ('Second, it is difficult to predict the needs an circumstances that could arise in the course of the war on terrorism.')' does not seem to fit under the point under discussion: that the President determining that GPW does not apply to this conflict would preclude prosecutions under the War Crimes Act. The flexibility point has been appropriately made elsewhere in the memorandum."

  United States. Department of Justice. Office of Legal Counsel

  Bybee, Jay S.

  2002-01-26
• Memorandum for the Attorney General: Re: Review of the Legality of the STELLAR WIND Program [May 6, 2004]

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  "You have asked this Office to undertake a thorough reexamination of the STELLAR WIND program as it is currently operated to confirm that the actions that the President has directed the Department of Defense to undertake through the National Security Agency (NSA) are lawful. STELLAR WIND is a highly classified and strictly compartmented program of electronic surveillance within the United States that President Bush directed the Department of Defense to undertake on October 4, 2001 in response to the attacks of September 11, 2001. Specifically, the program is designed to counter the threat of further terrorist attacks on the territorial United States by detecting communications that will disclose terrorist operatives, terrorist plans, or other information that can enable the disruption of such attacks, particularly the identification of al Queda operatives within the United States. The President's initial directive to the Secretary of Defense authorized the STELLAR WIND program for 30 days. Since then, the President has periodically (roughly every 30 to 45 days) reauthorized the program."

  United States. Department of Justice. Office of Legal Counsel

  Goldsmith, Jack L.

  2002-05-06
• Memorandum for the Attorney General: Re: STELLAR WIND - Implications of Handi v. Rumsfield [July 16, 2004]

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  "On May 6, 2004, this Office issued an opinion analyzing the legality of STELLAR WIND. 'See' Memorandum for the Attorney General, from Jack L. Goldsmith, III, Assistant Attorney General, Office of the Legal Counsel, 'Re: Review of the legality of the STELLAR WIND Program ('STELLAR WIND Opinion').' After a thorough review, the 'STELLAR WIND Opinion' concluded that the content … targeted at Al Qaeda-related communications and based on regular reassessments of the current threat level … authorized by a Congressional resolution providing the President the authority 'to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.'"

  United States. Department of Justice. Office of Legal Counsel

  Goldsmith, Jack L.

  2002-07-16
• Memorandum for Alberto R. Gonzales, Counsel to the President: Re: Treaties and Laws Applicable to the Conflict in Afghanistan and to the Treatment of Persons Captured by U.S. Armed Forces in that Conflict [November 30, 2001]

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  "In the course of the current military effort to combat international terrorism, including the present campaign in Afghanistan against the al Qaeda terrorist organization and the Taliban militia, it is foreseeable that U.S. military forces will need to detain foreign nationals in the course of conducting military operations. You have asked for our Office's views on several questions concerning the application of certain treaties, domestic federal law, and customary international law to the armed conflict in Afghanistan. In particular, you have asked about the applicability of the laws of armed conflict to the conduct of the U.S. Armed Forces towards captured members of the al Qaeda terrorist group and of the Taliban militia, which provides the former with sanctuary in Afghanistan. We conclude that these treaties do not protect the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that the President has reasonable grounds to find that these treaties do not apply to the Taliban militia. This memorandum expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties in the Afghanistan conflict, particularly with respect to the treatment of prisoners."

  United States. Department of Justice. Office of Legal Counsel

  Yoo, John; Delahunty, Robert J.

  2001-11-30
• Memorandum 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 [January 22, 2002]

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  "You have asked for our Office's views concerning the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. In particular, you have asked whether certain treaties forming part of the laws of armed conflict apply to the conditions of detention and the procedures for trial of members of al Qaeda and the Taliban militia. We conclude that these treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that that President has sufficient grounds to find that these treaties do not protect members of the Taliban militia. This memorandum expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners. We believe it most useful to structure the analysis of these questions by focusing on the War Crimes Act, 18 U.S.C. § 2441 (Supp. III 1997) ('WCA'). The WCA directly incorporates several provisions of international treaties governing the laws of war into the federal criminal code. Part I of this memorandum describes the WCA and the most relevant treaty that it incorporates: the Geneva Convention Relative to the Treatment of Prisoners of War ('Geneva III'). Parts II and III of this memorandum discuss why other deviations from the text of Geneva III would not present either a violation of the treaty or of the WCA."

  United States. Department of Justice. Office of Legal Counsel

  Bybee, Jay S.

  2002-01-22
• Memorandum for John Bellinger, III, Senior Associate Counsel to the President and Legal Adviser to the National Security Council: Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty [November 15, 2001]

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  This Justice Department memo from the Office of Legal Counsel addresses the opinion that the President has the right to suspend certain provisions of treaties unilaterally. "This is to provide you with our views on the question whether the President has the constitutional authority to suspend certain articles of the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, U.S.-U.S.S.R., 23 U.S.T. 3435 (the 'ABM Treaty') insofar as is necessary to allow the development and testing of missile defenses. You have asked us to consider two cases: first, suspension of the relevant articles by mutual consent of both the United States and the Russian Federation; second, unilateral suspension by the United Slates. We conclude that the President has the constitutional authority to suspend the articles in either case. We begin by setting out in Part I the relevant features of the ABM Treaty. In Part II, we review the President's constitutional authorities over treaties. In Part III, we address the President's specific powers of treaty termination and treaty suspension. Part IV illustrates these powers by reference to the practice of the United States. Part IV(A) addresses termination, and Part IV(B) suspension. Part V demonstrates that, whereas 'amending' an Article II treaty requires Senate advice and consent, the partial suspension of a treaty does not."

  United States. Department of Justice. Office of Legal Counsel

  Yoo, John; Delahunty, Robert J.

  2001-11-15
• Memorandum for William J. Haynes, II, General Counsel, Department of Defense: Re: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan

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  This memorandum issues a series of legal constraints that might apply to the interrogation process of persons captured in Afghanistan. Previous decisions such as "Miranda v. Arizona" set that obtaining intelligence for military operations and force protection are observed under a wide range of applications and specifics. This memorandum offers a wide reaching perspective on what could be relevant in this context, as well as custodial interrogation processes.

  United States. Department of Justice. Office of Legal Counsel

  2002-02-26
• Standards of Conduct for Interrogation Under 18 U.S.C. 2340-2340A

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  This Memorandum for Alberto R. Gonzales, Counsel to the President explains the legality of standards of conduct under existing legislation in the context of the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment. By explaining possible defenses, many of these former claims might be negated and placed under questionable argument.

  United States. Department of Justice. Office of Legal Counsel

  2002-08-01
• Justice Department Memo to the White House and Pentagon Counsels

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  This document is a memorandum submitted to Mr. Alberto R. Gonzalez on the subject of treaties and laws to al Qaeda and Taliban detainees. Also regarded in this context is the treatment of Taliban detainees in Guantanamo Bay, and views regarding the respect of the treatment of prisoners.

  United States. Department of Justice. Office of Legal Counsel
• Status of the Director of Central Intelligence Under the National Security Intelligence Reform Act of 2004, Memorandum Opinion for the Deputy Counsel to the President [January 12, 2005]

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  "The National Security Intelligence Reform Act of 2004 (the 'Intelligence Reform Act') restructures the management of the intelligence community. Among other things, the Intelligence Reform Act abolishes the title 'Director of Central Intelligence' ('DCI') and assigns certain of the functions currently performed by the DCI to an office entitled 'Director of National Intelligence' ('DNI') and certain of those functions to an office entitled 'Director of the Central Intelligence Agency' ('DCIA'). You have asked whether, at the time the Intelligence Reform Act becomes effective, the current DCI would require a new appointment to the office of DCIA should the President wish him to serve in that position. We conclude that a new appointment would not be required."

  United States. Department of Justice. Office of Legal Counsel

  2005-01-12
• President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, Memorandum Opinion for the Deputy Counsel to the President [September 25, 2001]

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  DOJ's Office of Legal Council published their opinion towards the scope of the President's authority to take military action in response to the terrorist attacks of September 11, 2001. They concluded: "The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001. The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11."

  United States. Department of Justice. Office of Legal Counsel

  2001-09-25
• Reconsideration of Prior Opinion Concerning Land-Grant Colleges: Memorandum for James S. Gilliland, General Counsel, Department of Agriculture [December 23, 1993]

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  "This responds to your request that this Office reconsider our opinion that West Virginia may designate West Virginia State College (State College) as the beneficiary of appropriated funds under the Second Morrill Act, Act of August 30, 1890, ch. 841, 26 Stat. 417 (codified as amended at 7 U.S.C. §§ 321-326, 328), and that, upon such designation, State College would become eligible to receive appropriated funds for agricultural research and extension under 7 U.S.C. §§ 3221, 3222, and 3223. After reviewing the matter once more, we hereby withdraw our original opinion in favor of the revised views expressed in this memorandum. As explained below, we adhere to our earlier conclusion that West Virginia may validly designate State College as the beneficiary of appropriated funds under the Second Morrill Act. We reverse, however, our original conclusion that West Virginia's designation of State College as a Second Morrill Act beneficiary made that school eligible for funds appropriated pursuant to 7 U.S.C. §§ 3221, 3222, 3223 and similar statutes. (Following the usage of Agriculture, we shall refer to these statutes collectively as the '1890 derivative statutes.') Rather, we conclude that State College is not eligible for funds under the 1890 derivative statutes."

  United States. Department of Justice. Office of Legal Counsel

  1993-12-23