|
Huffington Post – April 1, 2008
US memo supporting torture made public
By Lara Jakes Jordan
WASHINGTON — The Pentagon on Tuesday made public a now-defunct legal memo that approved the use of harsh interrogation techniques against terror suspects, saying that President Bush's wartime authority trumps any international ban on torture.
The Justice Department memo, dated March 14, 2003, outlines legal justification for military interrogators to use harsh tactics against al-Qaida and Taliban detainees overseas - so long as they did not specifically intend to torture their captors.
Even so, the memo noted, the president's wartime power as commander in chief would not be limited by the U.N. treaties against torture.
"Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion," said the memo written by John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel.
The memo also offered a defense in case any interrogator was charged with violating U.S. or international laws.
"Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability," the memo concluded.
The memo was rescinded in December 2003, a mere nine months after Yoo sent it to the Pentagon's top lawyer, William J. Haynes. Though its existence has been known for years, its release Tuesday marked the first time its contents in full have been made public.
Haynes, the Defense Department's longest-serving general counsel, resigned in late February to return to the private sector. He has been hotly criticized for his role in crafting Bush administration policies for detaining and trying suspected terrorists that some argue led to prisoner abuses at the detention center in Guantanamo Bay, Cuba.
Yoo's memo became part of a debate among the Pentagon's civilian and military leaders about what interrogation tactics to allow at overseas facilities and whether U.S. troops might face legal problems domestically or in international courts.
Also of concern was whether techniques used by U.S. interrogators might someday be used as justification for harsh treatment of Americans captured by opposing forces…..
The 81-page legal analysis largely centers on whether interrogators can be held responsible for torture if torture is not the intent of the questioning. And it defines torture as the intended sum of a variety of acts, which could include acid scalding, severe mental pain and suffering, threat of imminent death and physical pain resulting in impaired body functions, organ failure or death.
The "definition of torture must be read as a sum of these component parts," the memo said.
The memo also includes past legal defenses of interrogations that Yoo wrote are not considered torture, such as sleep deprivation, hooding detainees and "frog crouching," which forces prisoners to crouch while standing on the tips of their toes…
Senate Judiciary Committee Chairman Patrick Leahy said the memo "reflects the expansive view of executive power that has been the hallmark of this administration." He called for its release four months ago.
"It is no wonder that this memo ... could not withstand scrutiny and had to be withdrawn," said Leahy, D-Vt. "This memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country's status as a beacon of human rights around the world."
http://www.huffingtonpost.com/2008/04/01/pentagon-releases-2003-me_n_94570.html
CBS – April 2, 2008
How to write an effective torture memo?
By Attorney Andrew Cohen
One of the arts of fine lawyering is the art of making the ugly beautiful, the lame fleet, and the guilty determined innocent. By this measure, and perhaps this measure alone, John Yoo, the now-disgraced former architect of the Bush Administration’s terror law policies, is a masterful attorney.
Yoo’s March 14, 2003 “torture” memo-more formally known as In Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States-was made public late Tuesday after years of wrangling. The 81-page document was one of the legal bedrocks upon which the United States justified the torture of terror suspects. In effect for nearly nine crucial months at the start of the War in Iraq, Yoo’s work helped begat one of the great public relations disasters in American diplomatic history-the intensely chronicled prisoner abuse at Abu Ghraib.
The brilliance of the document-and of Yoo’s authorship of it-is that it enabled the Administration to hold a duck in its hand and sell it to the rest of the government (at least temporarily) as a swan. The old saw goes: when an attorney has bad facts, he argues the law; when he has bad law, he argues the facts. Yoo had bad law but two really “good” facts to offer: 1) the United States had been attacked by terrorists on September 11, 2001; 2) the attack had made the nation’s legal and political establishment willing (as it always is in times of war) to bend over backward in deference to a sitting president.
Yoo’s patrons demanded a legal justification for using “aggressive” or “enhanced” interrogation techniques (as they are even now euphemistically described) on terror suspects. The White House, and no doubt Yoo himself, knew that few pointed questions would be asked about his analysis and conclusions. Still, for the sake of history, something had to be put down on paper; something that would satisfy, at least temporarily, a straight-face credibility test. First, in 2002, Jay Bybee wrote a torture memo. Then, less than one year later, Yoo wrote his. The man and the moment and the dirty job had met.
The settled law-and not just the nooks and crannies of it-- was very much against allowing the sorts of “enhanced” interrogation practices that Yoo was proposing. He knew that. And he knew ultimately that other bright lawyers and judges would know that, too. So Yoo, methodically and with a great sense of the power of legalese, disassembled the definition of torture and then reassembled it to suit his goals. The memo is a legal Wonderland; analytical brick by brick Yoo created a rationale for expanding U.S. policy beyond where it had been before until black was white, up was down, and the laws against torture didn’t outlaw torture.
Reading the memo makes you think of the story of the frog which slowly boils to death in the pan as the water temperature slowly is raised. It reads like every other memo ever written by a loyal and zealous lawyer who was told by his client which course of conduct the client wanted to justify. Here is what I want to do, the client says to the lawyer, no go ahead and give me some legal support that helps me do it. The law doesn’t exactly allow it? That’s okay. Make the best arguments you can and we’ll take our chances in court.
Yoo’s starts us all on this ill-fated journey with a series of vital-but cleverly hedged-conclusions on Page 4 of the memo. “Because of the asymmetric nature of terrorist operations,” he wrote, information is perhaps the most critical weapon for defeating al Qaeda….. obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States… Interrogation of captured al Qaeda operatives could provide that information… it is reasonable to believe that information gained from al Qaeda personnel could prevent attacks….” (Note: Author's emphasis).
This speculation morphed, on page 18 of the memo, into the following declaration: “… the conduct at issue here- interrogations- is a core element of the military’s ability to prosecute a war.” Then, having declared that the President possessed “complete authority over the conduct of war,” Yoo’s succeeded in vitiating Congress’ role in the affair. “… In the absence of a clear statement from Congress otherwise,” Yoo wrote, “we will not read a criminal statute as infringing on the President’s ultimate authority in these areas.”
Through this passage, Yoo was conveniently concluding that the federal law banning torture did not apply to the White House unless the White House decided that it would. Nice work if you can get it, right? To be able to unilaterally determine which laws apply to you and which don’t? This is a theme throughout the memo. So is Yoo’s penchant for citing prior internal executive branch memos to help him support his own arguments. This may be standard practice within the corridors of power but it is akin to a lawyer citing his own brief as controlling precedent in a case that is before the court.
But it was on the substance of the torture statute that Yoo really shone. First, he made the case for why only the most extreme forms of torture were banned-a conclusion which probably would have shocked most of the legislators who decades ago voted for the law. Then he offered his client a virtual “how to” guide to torture, and to the administration of “mind-altering substances,” explaining in detail how a potential “defendant” (i.e. the person committing the interrogation) could avoid prosecution by establishing “good faith” in advance of the torture session.
Only rarely did Yoo show any measure of doubt about the great legal leap he knew he was taking in justifying extreme interrogation methods. These people, remember, will not be known to history for their penchant for self-criticism or reflection.
And in the end, of course, the policy behind Yoo’s masterwork was as flawed as his implementation of it was deft. The mechanics were there. The soul and the conscience were not.
For these reasons, and others, Yoo should never again play any role in government. But his memo has otherwise convinced me of his skills of persuasion. He can be my attorney any day and I promise to call him if I ever want to challenge a parking ticket in court.
http://www.cbsnews.com/stories/2008/04/02/opinion/courtwatch/main3988809.shtml
|
