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Memo to President Obama: You Have Another Memo to Withdraw

By Beth Van Schaack on

The election of Donald Trump has triggered an anxious conversation about how President Obama can entrench some of his accomplishments before January 21, 2017.  Importantly, given the Trump campaign’s embrace of waterboarding and “worse”, President Obama would do well to ensure that he has fully dismantled the Bush Administration’s post-9/11 detention and interrogation system. A series of interlocking memoranda emanating from the Office of Legal Council (OLC) of the Bush Administration’s Department of Justice undergirded this system, although some of these memos were actually written after-the-fact to rubber-stamp decisions already made and conduct already underway.  Indeed, as legal ethicist Professor David Luban testified before the Senate Judiciary Committee, rather than providing sound, defensible, and balanced advice for policies under consideration, these memoranda were actually part of an executive branch cover-up for torture and other abusive tactics already underway:

[The memos] read as if they were reverse engineered to reach a pre-determined outcome: approval of waterboarding and the other CIA techniques.

All of these memos and more on the U.S. torture program are available in the Torture Database maintained by the ACLU, which won the public release of many of these memoranda through its dogged litigation, and in the OLC’s FOIA Reading Room

Many of the most problematic memoranda regarding executive power and authorizing conduct that constitutes torture or other forms of prohibited cruel treatment have been withdrawn by the OLC or invalidated by President Obama by way of Executive Order.  At least one, however, has escaped this deserved fate: an August 15, 2005, memorandum to the file entitled “Whether Persons Captured and Detained in Afghanistan are ‘Protected Persons’ under the Fourth Geneva Convention” (Memo).  This Memo argues that the Fourth Geneva Convention, which protects civilians in the hands of a state of which they are not nationals, applies only to individuals on U.S. territory—an interpretation that would significantly truncate, if not virtually gut, the protections of that treaty.  President Obama and the OLC should repudiate and withdraw this memorandum before the change of administration in order to ensure that there is no risk that the spurious reasoning it contains ever governs U.S. law-of-war practices in the future. This would confirm that Convention protects civilians in the hands of a party to which they are not nationals in all international armed conflict situations, including enemy territory.

The rest of this post sets forth the history of the politicized and impugned OLC memoranda; explains the origins of the Geneva Conventions and the scope of their protected persons regime; deconstructs and repudiates the reasoning in the Memo; and provides the correct interpretation of the Fourth Geneva Convention.

The History & Context

The OLC under President Bush became deeply politicized and, in the words of one commentator,

confused its role as a neutral expositor of the law with the role of legal policymaking.

That this once-independent institution had become politically-captured eventually came to light when a series of memoranda authorizing various forms of torture and other mistreatment were leaked to the press. In an almost unprecedented move, the Bush Administration’s OLC itself actually withdrew one of the worst examples of the OLC’s results-oriented reasoning: the infamous Bybee memorandum. Among other disgraceful arguments, that “legal opinion” sought to raise the bar on what conduct constitutes torture under U.S. law to cover only acts causing pain equivalent to “organ failure, impairment of bodily function, or even death.”  The OLC replaced this memo with a 2004 legal opinion, submitted to none other than James Comey. That text began with the bold and unequivocal statement that

Torture is abhorrent both to American law and values and to international norms.

It then proceeded to dismantle most of Bybee’s efforts to get around the long-standing ban on torture in international and domestic law.

Immediately upon taking office, President Obama escalated this process of recalling problematic OLC memoranda.  Executive Order (EO) 13491 (“Ensuring Lawful Interrogations”), dated January 22, 2009, revoked an earlier EO issued by President Bush in 2007 (EO 13440) that had asserted that members of al Qaeda, the Taliban, and their associated forces were not entitled to the protections provided under the Third Geneva Convention (concerning prisoners of war) and that the CIA Detention and Interrogation Program would satisfy Common Article 3 of the Geneva Conventions so long as the program complied with the U.S. laws on torture as interpreted by the OLC and Department of Defense.

President Obama’s 2009 EO also:

Meanwhile, the newly-constituted OLC also withdrew more of its prior memoranda. This January 15, 2009, memorandum, for example, confirmed that the OLC would no longer rely upon the legal reasoning contained in a number of Bush-era memoranda and set forth alternative reasoning that would henceforth govern law-of-war detentions and a range of other issues, including the exercise of the commander-in-chief power. Likewise, this 2009 memorandum formally withdrew four of the most notorious memoranda.

Notwithstanding this cascade of repudiations of Bush-era legal reasoning, there is one OLC memorandum on the concept of civilian “protected persons” that has been neither repudiated nor withdrawn.  President Obama and/or OLC should do so now to definitively reject the erroneous legal reasoning and conclusions contained therein.

Read the full post at Just Security.

Published in: Publication , Other Writing , Geneva Conventions , Iraq , International Armed Conflict , torture