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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]
"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
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Authority of the Deputy Attorney General Under Executive Order 12333, Memorandum Opinion for the Associate Deputy Attorney General [November 5, 2001]
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
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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]
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
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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]
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
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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]
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
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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]
"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
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[Letter to William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, Regarding the Response to the Preliminary Report of the ABA Task Force on Treatment of Enemy Combatants, February 7, 2003]
"As you know, at the request of Robert Hirshon, then-President of the American Bar Association, the ABA [American Bar Association] Board of Governors last March established a Task Force on Treatment of Enemy Combatants. On August 8, 2002, that task force issued a preliminary report raising various concerns with the detention and treatment of U.S. citizens as enemy combatants. Immediately following the issuance of that report, and at your request, we provided you with informal advice on responding to the various legal arguments made by the task force, in preparation for the letter you eventually sent to current ABA President Alfred P. Carlton Jr. on October 2. We are pleased to provide you with the attached white paper which further explains our prior advice."
United States. Department of Justice. Office of Legal Counsel
Yoo, John
2003-02-07
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[Memorandum for the Attorney General: Re: The Foreign Intelligence Surveillance Act and the President's Ability to Engage in Warrantless Searches for Purposes of National Security, November 2, 2001]
This November 2, 2001 memorandum from John C. Yoo, the Deputy Assistant Attorney General of the Office of Legal Counsel, is addressed to the Attorney General. The contents of the document have been redacted but what is available concerns the Foreign Intelligence Surveillance Act (FISA) and "the President's ability to engage in warrantless searches that protect the national security."
United States. Department of Justice. Office of Legal Counsel
Yoo, John
2001-11-02
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Memorandum for William J. Haynes II, General Counsel of the Department of the Defense: Re: Possible Criminal Charges Against American Citizen Who Was a Member of the al Qaeda Terrorist Organization or the Taliban Militia [December 21, 2001]
"This is to provide you with a review of criminal charges that might be brought against John Walker, a United States citizen captured in Afghanistan while serving with enemy forces. As we understand it, Mr. Walker was captured by the Northern Alliance and was interrogated by American intelligence officials accompanying them, including John Michael Spann, a Central Intelligence Agency officer. Mr. Walker was present during, and may have played some role in, the revolt of Taliban and al Qaeda prisoners at the Qala-I-Jangi fortress, in which Mr. Spann was killed. Mr. Walker apparently joined the Taliban about six months ago and thereafter at some point also joined al Qaeda. He has reportedly said that he joined a military unit to fight in Kashmir against India before the September 11, 2001 terrorist attacks on the United States. According to press reports he is now being held aboard the 'U.S.S. Peleliu' in the Arabian Sea. We conclude that several criminal charges could be brought against Mr. Walker in different fora, depending on the facts. He could be charged in federal court with treason, killing a federal employee, assisting a terrorist organization, or unlawfully participating in foreign affairs. In addition, Mr. Walker could face prosecution in a court-martial for either aiding the enemy or for war crimes."
United States. Department of Justice. Office of Legal Counsel
Yoo, John
2001-12-21
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[Letter to the Honorable Alberto R. Gonzales, Counsel to the President, from John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Regarding the Legality of Interrogation Methods to Be Used During the Current War on Terrorism, August 1, 2002]
"You have requested the views of our Office concerning the legality, under international law, of interrogation methods to be used during the current war on terrorism. More specifically, you have asked whether interrogation methods used on captured al Qaeda operatives, which do not violate the prohibition on torture found in 18 U.S.C. § 2340-2340A, would either: a) violate our obligations under the Torture Convention, or b) create the basis for a prosecution under the Rome Statute establishing the International Criminal Court (ICC). We believe that interrogation methods that comply with § 2340 would not violate our international obligations under the Torture Convention, because of a specific understanding attached by the United States to its instrument of ratification. We also conclude that actions taken as part of the interrogation of al Qaeda operatives cannot fall within the jurisdiction of the ICC, although it would be impossible to control the actions of a rogue prosecutor or judge. This letter summarizes our views; a memorandum opinion will follow that will more fully explain our reasoning."
United States. Department of Justice. Office of Legal Counsel
Yoo, John
2002-08-01
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Memorandum for William J. Haynes II, General Counsel of the Department of the Defense: Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States [March 14, 2003]
This legal memorandum was prepared by the Justice Department in response to a request from the Pentagon to "examine the legal standards governing military interrogations of alien unlawful combatants held outside the United States," including both domestic and international law. Part One evaluates the relevancy of the Fifth and Eight Amendments, while Part Two examines federal criminal law in relation to the President's power as Commander in Chief. Part Three examines international law, including the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the corresponding US obligations to such international restrictions. Finally, Part Four discusses "defenses to an allegation that an interrogation method might violate any of the various criminal prohibitions discusses in Part II."
United States. Department of Justice
Yoo, John
2003-03-14
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Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs: Re: Authorization for Use of Military Force Against Iraq Resolution of 2002 [October 21, 2002]
"This memorandum confirms the views of the Office of Legal Counsel, expressed to you last week, on H. J. Res. [House Joint Resolution] 114, the Authorization for Use of Military Force Against Iraq Resolution of 2002. This resolution authorizes the President to use the United States Armed Forces, 'as he determines to be necessary and appropriate,' either to 'defend the national security of the United States against the continuing threat posed by Iraq,' or to 'enforce all relevant United Nations Security Council resolutions regarding Iraq.' H. J. Res. 114, § 3(a). We have no constitutional objection to Congress expressing its support for the use of military force against Iraq. Indeed, the Office of Legal Counsel was an active participant in the drafting of and negotiations over H. J. Res. 114. We have long maintained, however, that resolutions such as H. J. Res. 114 are legally unnecessary."
United States. Department of Justice. Office of Legal Counsel
Yoo, John
2002-10-21
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Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs: Re: Specter/Harkin Joint Resolution Calling for Congress to Vote on a Resolution for the Use of Force by the United States Armed Forces Against Iraq [July 23, 2002]
"This memorandum sets forth the views of the Office of Legal Counsel on a draft joint resolution recently proposed by Senators Arlen Specter and Tom Harkin, regarding the possible use of force by the U.S. Armed Forces against Iraq. The resolution states that Congress should consider and vote on a resolution authorizing the use of force by the United States before force is used against Iraq. Although the Administration might welcome an expression of Congressional support for any military action the Executive Branch may decide to take against Iraq, such a resolution is unnecessary as a matter of constitutional law. As Chief Executive and Commander in Chief, the President possesses ample authority under the Constitution to direct the use of military force against Iraq, To the extent that the joint resolution suggests that military action against Iraq would be unlawful absent further action by Congress, it relies upon an erroneous interpretation of the Constitution. Moreover, even putting aside any constitutional source of power, statutory authorization for such a military action already exists."
United States. Department of Justice. Office of Legal Counsel
Yoo, John
2002-07-23
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