Justice memo on torture disclosed

Adds to evidence of top officials' role

WASHINGTON - A newly disclosed Justice Department legal memo, written in March 2003 and authorizing the military's use of extremely harsh interrogation techniques, offers what could be a clue in an unsolved mystery: What responsibility did top Pentagon and administration officials have for abuses committed by American troops?

Some legal specialists and advocates said yesterday that the memo, written the month that the United States invaded Iraq, adds to the evidence that the abuse of prisoners in military custody may have involved signals from higher officials.

The memo was written by John C. Yoo of the Office of Legal Counsel, the executive branch's highest authority on the interpretation of the law. It told the Pentagon's senior leadership that inflicting pain on a suspect would not be considered torture unless it caused "death, organ failure, or permanent damage," and was the most fully developed legal justification that has yet come to light for inflicting physical and mental pressure on suspects.

While resembling a 2002 memo drafted largely by Yoo, the March 2003 opinion went further, arguing more explicitly that the president's war powers could trump the law against torture, which it said could not constitutionally be enforced if it interfered with the president's orders.

Scott L. Silliman, head of the Center on Law, Ethics, and National Security at Duke University, said he did not believe the Justice Department memo directly caused mistreatment. But he added, "The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere."

In an e-mail message, Yoo noted that several military investigations found that "the appalling abuses" at Abu Ghraib were not authorized by any military policy.