Case #1854.0

Defining Torture in the War on Terror: The Trail of the "Torture Memo" (B)

Publication Date: December 14, 2006
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After the September 11, 2001, attacks on the United States, President George W. Bush launched a military offensive in Afghanistan, which led to the capture of Al Qaeda operatives thought to be behind the attacks. Top US officials debated how to extract crucial information from them about Al Qaeda's future plans. The Central Intelligence Agency wanted to apply aggressive interrogation methods, which it argued were necessary to convince detainees to reveal what they knew. But CIA officials worried such techniques might violate both international treaties banning torture and "cruel, inhuman or degrading" treatment of prisoners of war and detainees and, more consequentially, the domestic laws that enforced them. To protect its agents, the CIA sought a clear statement from the Bush Administration on how far agents could go in efforts to force detainees to talk. These cases tell the story of OLC's legal findings and their consequences. Part A (1853.0) describes a series of OLC memoranda on the treatment of detainees in the "war on terror," culminating in an August 2002 opinion that became known as the "torture memo," which narrowly interpreted the legal meaning of torture but took a broad view of presidential wartime powers under the Constitution. Part A ends as Assistant Attorney General and OLC head Jay Bybee must decide whether to sign the opinion. Part B (1854.0) tracks the results of the torture memo, tracing the use of interrogation techniques it sanctioned from CIA detention centers overseas to the naval base in Guantanamo Bay, Cuba. In the view of some, these harsher techniques eventually "migrated" to Abu Ghraib prison in Iraq, where abusive treatment of detainees became an international embarrassment for the US.

Learning Objective:
The cases are intended to describe the interface between legal advisors and high policy officials, and to ask how government lawyers should best advise their clients. Was it their responsibility to provide legal arguments to support a favored policy? Should they spell out risks, or introduce extra-legal considerations, such as the moral and ethical ramifications of a policy? Parts A and B were designed to be used together or in succession, but can also be taught as stand-alone cases.

Other Details

Case Author:
Esther Scott
Faculty Lead:
Philip Heymann
Pages (incl. exhibits):
United states
Funding Source:
Partial Funding provided by the Center for International Criminal Justice, Harvard Law School"