March 14, 2003 Memorandum for William J. Haynes IT, General Counsel of the Department of Defense Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States, Declassified under authority of Executive Order 1958 By Acting General Counsel, Department of Defense By Daniel Dell J.’Orto UNCLASSIFIED 31 March 2008. (81 pages, PDF)
“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. 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 II, 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 Chief ‘s power solely to the President.”
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