The Wall Street Journal has just uploaded the 2003 torture memo.
Beware, it’s a PDF file.
April 2003 Defense Department memo
UPDATE: The WSJ posting of the DoD memo has of course been censored. A poster at Billmon’s Whiskey bar has counted up the missing pages. This post is in the comments of this thread, by poster Jackmormon at June 9, 2004 11:43 AM
Censored Torture [M]emo
Missing pages 1-3, and of course, most importantly, the table of contents.
Page 4 of document, blacking-out of footnotes 2 and 3, explaining points made in-text about how the Geneva and Hague conventions do not apply to Al Qaida and Taliban combatants.
Page 25 of document, blank space in middle of argument about the defense strategy of pleading necessity. The context of the missing paragraph are exceptions and limitations to and special qualities of the necessity defense. The argument skips over the blank spot from weighing the relative harm of the threat and the defense to the exemption to the necessity defense represented by specific Congressional “determination of values.”
Missing pages 29-30. Bottom of page 28 is wrapping up some arguments about the self-defense defense. The last paragraph of page 28 is addressing the idea of proportional response. The top of page 31 has a few stray paragraphs before a new section about the declaration of war (or rather “authorization of force against”) Al Qaida, and introduces the idea that the nation’s right to self-defense could be used as a defending argument for an individual agent of the government accused of “harming an enemy combatant during an interrogation.” The missing pages presumably follow the steps of this argument, perhaps with information about executive directives.
Missing page 34. Bottom of 33 has the argument still in the section of defense arguments dealing with the “superior orders” defense. The last paragraph before the break closes with: “In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.” Top of 35 has a cryptic partial paragraph before a major section break, concluding with: “It thus appears that the TVPA does not apply to the conduct of U.S. agents acting under the color of law.” TVPA is probably the Torture Victims Protection Act, rather than the Trafficking Victims Protection Act. Here the missing page would seem to address questions of financial reimbursement for torture victims.
Missing page 41. Bottom of 40 starts with the applicability of constitutional law as regards the fifth, eighth, and fourteenth amendments to GTMO prisoners, suggesting that “even if a Court were mistakenly to find that unlawful combatants at GTMO did have constitutional rights, it is unlikely that due process would impose any standards beyond those required by the eighth amendment.” The top of 42 starts a new paragraph with: “On the other hand, some conduct is so egregious that there is no justification.”
Page 46 of document, blank space in section dealing with questions of jurisdiction, and the specific applicability of military law to crimes committed in a combat situation. Last paragraph before censorship began to address problem of “war crimes.”
Missing page 48. Bottom of 47 starts with the Military Code’s definitions of assault, and the top of 49 starts with “statutes and treaties that have become the law of the land may create duties for the purposes of this article” and continues to discuss the Military Code’s definitions of maiming.
Page 53 of document is almost entirely blank, with only the section heading “Legal doctrines could render specific doctrine, otherwise criminal, not unlawful. See discussion of Commander-in-Chief Authority, supra.” The section referred to is the one that made the headlines, the one with the passage that reads “In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not to be read as infringing on the President’s ultimate authority in these areas.” It sounds like this elided paragraph referred to Presidential directives either issued or recommended
And of course the memo breaks off entirely at the beginning of the section on “Presidential and Secretary of Defense Directives.”