A memo on torture dated March 14, 2003 was released by The Pentagon on April 1, 2008. The memo, written by former Justice Department lawyer John Yoo, outlined when, as long as it wasn't specifically intentional torture, it would be legally justified for military interrogators to use harsh tactics against al-Qaida and Taliban detainees held overseas.

In the memo, Yoo argues that prohibition of cruel and unusual punishment as stated in the Eighth Amendment doesn't apply because the detainees "have not been punished as part of a criminal proceeding." Yoo also wrote that "The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting the loss of significantly bodily function will likely result" in order for it to be considered cruel and unusual punishment.

The memo states that President Bush's wartime powers override any international treaties banning torture. The memo was much debated because it called in to question whether U.S. troops might face legal problems in the United States or in international courts and if the same harsh treatment techniques may be used against captured Americans by opposing forces.