"because the United States' instrument of ratification defined torture in exactly the same manner as in 18 U.S.C. §§ 234Q-2340A, the United States' treaty obligation is no different than the standard set by federal criminal law. With respect to CAT's provision concerning cruel, inhuman, or degrading treatment or punishment, the United States' instrument of ratification defined that term as the cruel, unusual and inhuman treatment prohibited by the Eighth, Fifth, and Fourteenth Amendments" (page 48)
Regarding this ratification, Yoo tells us:
"The Reagan administration determined that CAT's definition of torture was consistent with ''United States and international usage, [where it] is usually reserved for extreme deliberate and unusually cruel practices, for example, sustained systematic beatings, application of electric currents to sensitive, parts of the body and tying up or hanging in positions that cause extreme pain." S. Exec. Rep; No. 101-30, at 14 (1990).
"Further, the Reagan administration clarified the distinction between torture and lesser forms of cruel, inhuman, or degrading treatment or punishment. In particular, the administration declared that article 1's definition of torture ought to be construed in light of article 16. See S. Treaty Doc. No. 100-20, at 3.
"'Torture' is thus to be distinguished from lesser forms of cruel, inhuman, or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in case of torture.;' Id. at 3. This distinction was "adopted in order to , emphasize that torture is at the extreme end of cruel, inhuman and degrading treatment or punishment."
ld.at 3. Given this definition, "rough treatment as generally falls into the category of 'police brutality,' while deplorable, does not amount to 'torture.'
"Although the Reagan administration relied on CAT's distinction between torture and "cruel, inhuman, or degrading treatment or punishment," it viewed the phrase "cruel, inhuman, or degrading treatment or punishment" as vague and lacking in a universally accepted meaning. The vagueness of this phrase could even be construed to bar acts not prohibited by the U.S. Constitution. The Administration pointed to Case of X v. Federal Republic of Germany as the basis for this concern. In that case, the European Court of Human Rights determined that the prison officials' refusal to recognize a prisoner's sex change might constitute degrading treatment. See S. Treaty Doc. No. 100-20, at (citing European Commission on Human Rights, Dec. on Adm., Dec. 15, 1977, Case of X v. Federal Republic of Germany (No. 6694/74), 11 Dec. & Rep. 16)). As a result of this concern, the Administration added the following understanding to its proposed instrument of ratification:
"'The United States understands the term, 'cruel, inhuman or degrading treatment or punishment,' as used in·Article 16 of the Convention, to mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States."" (pages 50 - 51)
THEN, the first Bush administration released this interpretation of CAT's banning of torture:
"The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental pain caused by or resulting from (1) the intentional infliction or threatened Infliction of severe physical pain or suffering; {2) administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration· or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality."
So far, I don't really disagree with what's going on. Finally, this is where Yoo's arguments get really interesting:
"article 2(2) of CAT . . . provides that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." We do not believe, however,that a treaty may eliminate the United States' right, under international law, to use necessary measures for its self-defense. The right of national self-defense is well established under international law." (page 57)
He then says that the concept of self defense is expressed thusly:
"The concept of self-defense in international law of course justifies more than activity designed merely to resist an armed attack which is already in progress. Under international law every state has, in the words of Elihu Root, 'the right . . . to protect itself by preventing a condition of affairs in which it will be too. late to protect itself.'" (page 57)
Finally, he concludes:
"Thus, if interrogation methods were inconsistent with the United States' obligations under CAT, but were justified by necessity or self-defense, we would view these actions still as consistent ultimately with international law. Although these actions might violate CAT, they would still be in service of the more fundamental principle of self-defense that cannot be extinguished by CAT or any other treaty." (page 58)
With the caveat:
"See Iraq Memorandum at 33. First, "the use of force must be necessary because the threat is imminent and thus pursuing peaceful alternatives is not an option." Id. "Second, the response must be proportionate to the threat." Id. We further explained that to detainee whether a threat is sufficiently imminent to make the use of force necessary, "[f]actors to be considered include: the probability of an attack; the likelihood that this probability will increase, and therefore the need to take advantage of a window of opportunity; whether diplomatic alternatives are practical; and the magnitude of the harm that could result from the threat."" (page 58)
So THAT is how John Yoo proposes that, despite international treaties and domestic law, in a time of war, activity that would otherwise be considered "torture" is justifiable as self-defense despite the fact that CAT explicitly states that there can be no justification for torture. This reasoning is due to Yoo's valuation of the right to self-defense, which is asserted in various international treaties, above the CAT. So, if the torturous behavior conforms to his caveat above, then it should be permissible despite the CAT.
Honestly, his conclusion seems to me to be much like your conclusion that torture is permissible, and even obligatory, in certain extremely narrow situations which may never actually obtain where there is an imminent (ticking time bomb) threat and peaceful alternatives are not options. It looks to me like John Yoo's reasoning regarding torture's permissibility can be summarized thusly:
-Summary-
Regarding Constitutional protection of enemy combatants:It is clear that the President may waive the rights of enemy combatants in order to carry out the role of defending the United States. For instance, it is not necessary to provide due process to an enemy tank column before destroying it with an air strike. In short, such criminal statutes as given in the Constitution, if they were misconstrued to apply to enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President. Therefore, the Constitution does not provide any protections to enemy combatants whatsoever.
Note from me: This sort of issue is exactly what international treaties try to prevent. The lack of protections granted to enemy soldiers as provided by individual countries' laws was seen problematic, and so international treaties sought to provide these protections. Therefore, and because of the Supremacy Clause in the Constitution, we must also look to international treaties for input on what kinds of activities should be illegal. Mr. Yoo holds a position on these treaties as follows:
With regards to international treaties:Should the situation arise that a government or its officials is/are faced with a predicament where it is justifiably believed that acts which would otherwise be considered torturous and thereby banned from use are the only means by which the government or its officials can prevent a sufficiently harmful event from occurring, these acts are legally permissible due to the fact that the right of a country to defend itself against attack, which extends to include preventative measures as well as reactionary measures, cannot be subverted by any treaty, including the CAT.
-End Summary-
The final conclusion is that the Constitution provides no protections to enemy combatants and international law provides protections which do not and cannot suppress or subvert the nation's essential right to defend itself. Therefore, in certain, narrowly construed situations where activities otherwise known as torture are justifiably believed to be the only means by which disaster of sufficient magnitude may be averted, these activities are permissible.