u.s. Department 'of Justice
Office of Legal Counsel
Office of the Deputy Assistant Attorney General
Washington. D.C. 20530
March 14,2003 . Memorandum for William J. Haynes IT,
General Counsel of the Department of Defense
Re: Military Interrogation ofAlien Unlawful Combatants Held Outside the United States
You have asked our Office to' examine the legal standards governing military interrogations of alien unlawful combatants held outside the United States. You have requested that we examine both· domestic and international law that might be applicable to the conduct of those interrogations. l .
In Part I, we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to· alien enemy combatants held abroad. In Part IT, we examine federal criminal law. We explain that several canons of construction apply here. Those canons .of construction indicate that federal criminal laws of general applicability do not apply to .·properly~authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's. grant of the Commander in Chiefpower solely to the President.
Although we do not believe. that these laws would apply· to authorized military interrogations, we outline the various federal crimes that apply in the special maritime and territorial jurisdiction of the United States: assault, 18 U.S.C. § 113 (2000); maiming, 18 U.S.C. § 114 (2000); and interstate' stalking, 18 U.S.C. § 2261A(2000). In Part IT.C., we address relevant criminal prohibitions that apply to conduct outside the jurisdiction of the United States: war crimes, 18 U.S.C. § 2441 (2000); and torture, 18' U.S.C. § 2340A (2000 & West Supp. 2002). . In Part III, we examine the international law applicable to the conduct ofinterrogations. First, we examine the U.N....