Also identified as the “Bybee memos,” because of Bybee’s signature on them, they were in fact written primarily by John Yoo, a law professor at the University of California, Berkeley, who worked as a lawyer in the OLC from 2001 to 2003.

Although the OLC is supposed to provide impartial legal advice to the executive branch, Yoo was not interested in being impartial. As one of six lawyers close to Vice President Dick Cheney — along with David Addington, Cheney’s legal counsel; White House Counsel Alberto Gonzales; White House Deputy Counsel Tim Flanigan; William J. Haynes II, the Pentagon’s general counsel; and his deputy, Daniel Dell’Orto — Yoo played a significant role in formulating the notion that in the Bush administration’s “war on terror,” prisoners could be held as “enemy combatants” without the traditional protections of the Geneva Conventions; in other words, without any rights whatsoever.

That position was confirmed in an executive order issued by George W. Bush on February 7, 2002. It was not officially challenged until the Supreme Court reminded the government, in Hamdan v. Rumsfeld in June 2006, that Common Article 3 of the Geneva Conventions, which prohibits torture and “outrages upon personal dignity, in particular humiliating and degrading treatment,” applies to all prisoners seized in wartime.