The U.S. Justice Department released a memo that provided the “key link” connecting the prisoner abuses in Guantanamo and Abu Ghraib back to the White House.

The memo, authored by Berkeley law professor John Yoo, used a radical interpretation of the Constitution — the theory of the “unitary executive” — to claim that the president has essentially unlimited powers during war time, including the right to torture.

“It is the ultimate expression of Cheney's belief that anything the president or his designates do — no matter how illegal, barbaric or un-American — is justifiable in the name of national self-defense,” said Dan Froomkin in The Washington Post.

Federal statutes against maiming prisoners — which prohibit actions like poking out a prisoner’s eye, cutting out his tongue or pouring boiling water or acid on him — were not to apply to the president’s wartime authority as commander in chief, Yoo said.

Yoo joined former Pentagon official Douglas Feith, Cheney’s then-legal counsel David Addington, and former Pentagon General Counsel William J. “Jim” Haynes II, among others, and became “a torture team of lawyers” bent on expanding the president’s power, said international lawyer Philippe Sands in May’s issue of Vanity Fair.

Mike Gelles, of the Naval Criminal Investigative Service, feared the methods and legal rationale of al Qaeda suspect Mohammad al-Qahtani’s interrogation — said by many to be clear violations of Article 3 and the Convention Against Torture — would “migrate” elsewhere. And they did: to “Afghanistan and Iraq, where they were neither limited nor safeguarded,” according to a 2006 Pentagon’s inspector general report.

While low-level individuals took the brunt of the blame in recent abuse cases, Gelles’ and other testimonies point all the way up the chain of command.

Maj. Gen. Mike Dunlavey, the former commander of the interrogation unit in Guantanamo, told the Army’s inspector general, Lt. Gen. Randall M. Schmidt, under oath that both Rumsfeld and Bush were “personally involved” in the interrogation of al-Qahtani, according to Congressional Quarterly.

Geneva’s Common Article 3 holds that all combatants who do not fit the behavior of P.O.W.s are still afforded lesser, but still significant, rights prohibiting “outrages upon personal dignity, in particular, humiliating and degrading treatment” — statutes that correspond to U.S. federal law as well.

Despite the administration lawyers’ efforts to circumvent or abandon Geneva, the Supreme Court ruled in June 2006 in Hamdan v. Rumsfeld that prisoners in Guantanamo Bay are entitled Article 3 protections.

Justice Anthony Kennedy, of the majority opinion, observed that “violations of Common Article 3 are considered ‘war crimes,’” Sands wrote.

Less than 4 months later, the Military Commissions Act (MCA) was rushed through Congress before the Democrats took control the next year. A little known provision slipped into the MCA retroactively granted immunity to perpetrators of war crimes back to 1997, Jeff Stein said in Congressional Quarterly.

In effect, the administration’s lawyers had immunized themselves — but only within the borders of the U.S.

Sands described the real possibility of future war crime indictments because of the immunity granted by the MCA and the legal precedent of United States v. Altstoetter, which holds torture lawyers liable.

The MCA’s immunity clause was “very stupid,” a European prosecutor told Sands — it’s “much easier” for foreign investigators to intervene knowing that possible war crimes would never be addressed in the home country.

The Atlantic’s Andrew Sullivan said that “the memo from John Yoo — as well as revelations from Philippe Sands’ book — mean that Donald Rumsfeld, David Addington and John Yoo should not leave the United States any time soon. They will be at some point indicted for war crimes. They deserve to be.”

One European judge told Sands, “It’s a matter of time. …[T]hese things take time. And then something unexpected happens, when one of these lawyers travels to the wrong place.”

[Reach columnist Aditya Ganapathiraju at news@thedaily.washington.edu.]