The Mystic On The Yoo Torture Memo
The Mystic sent me this analysis of the Yoo torture memo the other day, and I thought it was really damn interesting--so here it is, for your enjoyment and edification:
=======================================
I've been using my free time at work (gotta work the weekend shift and I just have to sit here in case someone at our business symposium needs something..) to read John Yoo's memo.
Here is the basic setup, if you haven't gotten around to reading it:
1) He argues that "we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad."
His reasoning for this seems to actually rest on previous assertions by Supreme Courts to the effect that the country can't be held accountable for infringements of civil liberties of enemy combatants during wartime, as this would make fighting a war impossible. He says, "Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President".
I actually am somewhat convinced by the somewhere-between-skimming-and-reading I've done of his memo that he's right. It looks like it's up to Presidential discretion about how to go about applying the Constitution to enemies. However, two things about that come to mind: (1) Just because you legally can do something, that doesn't mean it's morally right and therefore, one could still be morally culpable for doing something despite its legality. Further (2), what about international treaties, which the Constitution itself declares the "Supreme Law of the Land"? The latter is addressed below:
2) Yoo argues that "At the outset, it is important to emphasize that the President can .suspend or terminate any treaty or provision of a treaty." He continues by saying:
"Moreover, as U.S. declarations during CAT's ratification make clear, the ·Convention is .non-self-executing and therefore places no legal obligations under domestic law· on the Executive Branch, nor can it create any cause of action in federal court. Letter for Alberto R. Gonzales, Counsel to the President from John C.Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, 1 (July 22,2002). Similarly, customary international law lacks domestic legal effect,. and in any event can be overridden by . the President at his discretion." (page 47)
He cites various memos to which I have no access:
"Memorandum for John Bellinger, III, Senior Associate Counsel to the President and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ARM Treaty (Nov. 15,2001); Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General. Re: Authority of the President to Denounce the ABM Treaty (Dec. 14,2001)." (page 47)
He also says: "The President conducts the day-to-day interpretation of a treaty, and may terminate a treaty unilaterally. See Goldwater v. Carter,617 F.2d 697, 707..:..08 (D.c. Cir.) (en banc), vacated and remanded with instructions to dismiss on other grounds, 444 U.S. 996 (1979)." (page 50)
He ends by saying that "Any presidential decision to order interrogation methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions." So, really, I don't know that it's very debatable that the President can suspend the rights of enemy combatants. Clearly, we shoot enemies without due process pretty frequently and there seems to be no set standard by which one determines how to differentiate between which rules can be suspended and which must be enforced when it comes to enemy combatants. So, in all honesty, I don't see a way to reason that we have to have due process for POWs but not for enemy combatants that are engaged without it being an issue of self-defense. Seems like we'd have to try and convict a spotted enemy convoy of tanks before we hit it with an air strike if that were the case, right? In fact, it seems to me that issues like this are precisely why countries got together internationally and articulated treaties that would lay down provisions of this type.
However, I don't really know what the point of a treaty is if the US can just break it whenever it feels like it, which is what John Yoo seems to be claiming. He does provide some interesting information about CAT (the UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment):
"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.
The Mystic sent me this analysis of the Yoo torture memo the other day, and I thought it was really damn interesting--so here it is, for your enjoyment and edification:
=======================================
I've been using my free time at work (gotta work the weekend shift and I just have to sit here in case someone at our business symposium needs something..) to read John Yoo's memo.
Here is the basic setup, if you haven't gotten around to reading it:
1) He argues that "we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad."
His reasoning for this seems to actually rest on previous assertions by Supreme Courts to the effect that the country can't be held accountable for infringements of civil liberties of enemy combatants during wartime, as this would make fighting a war impossible. He says, "Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President".
I actually am somewhat convinced by the somewhere-between-skimming-and
2) Yoo argues that "At the outset, it is important to emphasize that the President can .suspend or terminate any treaty or provision of a treaty." He continues by saying:
"Moreover, as U.S. declarations during CAT's ratification make clear, the ·Convention is .non-self-executing and therefore places no legal obligations under domestic law· on the Executive Branch, nor can it create any cause of action in federal court. Letter for Alberto R. Gonzales, Counsel to the President from John C.Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, 1 (July 22,2002). Similarly, customary international law lacks domestic legal effect,. and in any event can be overridden by . the President at his discretion." (page 47)
He cites various memos to which I have no access:
"Memorandum for John Bellinger, III, Senior Associate Counsel to the President and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ARM Treaty (Nov. 15,2001); Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General. Re: Authority of the President to Denounce the ABM Treaty (Dec. 14,2001)." (page 47)
He also says: "The President conducts the day-to-day interpretation of a treaty, and may terminate a treaty unilaterally. See Goldwater v. Carter,617 F.2d 697, 707..:..08 (D.c. Cir.) (en banc), vacated and remanded with instructions to dismiss on other grounds, 444 U.S. 996 (1979)." (page 50)
He ends by saying that "Any presidential decision to order interrogation methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions." So, really, I don't know that it's very debatable that the President can suspend the rights of enemy combatants. Clearly, we shoot enemies without due process pretty frequently and there seems to be no set standard by which one determines how to differentiate between which rules can be suspended and which must be enforced when it comes to enemy combatants. So, in all honesty, I don't see a way to reason that we have to have due process for POWs but not for enemy combatants that are engaged without it being an issue of self-defense. Seems like we'd have to try and convict a spotted enemy convoy of tanks before we hit it with an air strike if that were the case, right? In fact, it seems to me that issues like this are precisely why countries got together internationally and articulated treaties that would lay down provisions of this type.
However, I don't really know what the point of a treaty is if the US can just break it whenever it feels like it, which is what John Yoo seems to be claiming. He does provide some interesting information about CAT (the UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment):
"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.
posted by Winston Smith at
9:25 PM
14 Comments:
Winston,
With all due respect to Mystic's friend, Yoo's memo in fact reeks of *legalistic* rather than astute *legal* reasoning. I.e., he sought to confer legaly-ness onto the clearly illegal desires of his patrons. In short, he gave them the get-out-of-jail-free card they wanted. You might go here for more cogent analysis of what was going on (including in the comments):
http://balkin.blogspot.com/2008/04/legality-of-evil-torture-memos-and.html
As for the morality or immorality of torture, something which is separate from the question of what legal powers our public servants are granted under the law, I would re-post this comment I left at Malcolm Nance's essay about waterboarding (also addresses efficacy):
""Please consider the possibility that the President was weighing national security against the legal and moral implications and that - just maybe - he did not begin from all of the same assumptions that you begin with."
If that was the case, then not only did he disregard the oath he took upon assuming office:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
but he also failed in his constitutional duty to see that the laws be faithfully executed (such as the Convention against Torture).
Also, what many are losing sight of is the difference between personal moral agency and the function of employees of the government. Those employees all take a similar oath to that of the president, which is an oath to uphold the consititution. They owe no similar moral duty to my family that I do.
So while the question of what I would do if confronted with some kind of one-in-a-million situation that for example Mr. Evans refers to, where I could save my family by committing torture, I can't honestly say what I would do in that situation. Perhaps I would commit what is undeniably a wrong in the hopes of saving my family. But if I did it would be because I believed that I owed such a moral obligation to my family.
But even in that case, I would also have no reason to expect legal immunity or even leniency. Seeking legal protection strips the entire exercise and justification of its moral profundity. Either you think your moral justification trumps the law or you don't. Having official and legal approval doesn't make your action a morally trenchant decision, it makes it following orders.
There is no evidence of a similar moral duty owed to citizens by employees of our government. They may believe it is so; but that does not make it so. They are acting in their capacity as our employees. If we wish to empower them with that ability, we should undo all of the laws on the books forbidding such behavior and withdraw from all treaties that do so as well. People may attempt to graft that moral obligation to MY family onto our servants in government, but that merely represents an attempt to win by visceral reaction, rather than logic. Yes, I would probably HOPE that some random interrogator would save my family by torturing a suspect, yet I have no legitimate reason for expecting it. In this respect the analogy to WW II Germany is apt: a German interrogator may have been able to morally justify torturing a captive in an effort to save his family (say by gaining information about a planned bombing raid in Dresden), but he should not expect to escape legal liability at Nuremberg.
As far as the practical results of torture, I would say that the use of torture could result in increase peril to our troops in battle because opposing combatants who thought they might be tortured would be more apt to fight to the death rather than surrender. There was a good reason why the understood rule among German soldiers in WW II was to run west not east if they found themselves behind enemy lines or separated from their unit.
Finally, also from a practical point of view, I would ask that people examine the case of Ahmed Ressam, the captured millenium bombing plotter:
http://corrente.blogspot.com/2005/08/terrorizing-judges.html
A sample:
"Ahmed Ressam became a terrorist turncoat.
On May 10, 2001, FBI Agent Fred Humphries questioned Ressam, the first of dozens of interviews. The information was invaluable — and terrifying. He explained how he was recruited in Montreal and funneled into the bin Laden camps. He talked in detail about training with Taliban-supplied weapons. He informed on Abu Zubaydah, Abu Doha and other top al-Qaida operatives. He provided the names of jihad fighters he had met in the camps. He revealed that he had contemplated blowing up an FBI office and the Israeli embassy in Washington, D.C....
Since the Sept. 11 attacks, Ressam's solitude has been broken by a stream of visitors, often FBI agents such as Fred Humphries, but also investigators from Germany, Italy and elsewhere.
With federal public defender Jo Ann Oliver at his side, he is told names and shown photographs of suspected terrorists and asked if he knows them.
On several occasions, Ressam has been flown to New York City for similar questioning. There, he is held in a detention center just blocks from Ground Zero.
Ressam did not recognize any of the 19 suicide hijackers from Sept. 11. But he was able to identify student pilot Zacarias Moussaoui of Minneapolis, now in U.S. custody, as a trainee from Osama bin Laden's Khalden camp.
Ressam informed on Abu Doha, a London-based Algerian who was the brains and money behind Ressam's Los Angeles airport plot. He identified Ibn al-Shaykh al-Libi, who ran the Khalden camp, and Abu Sulieman, who taught bomb-making at the Darunta camp.
Most importantly, Ressam named the previously little-known Abu Zubaydah as a top aide to bin Laden. That helped smash the notion that Zubaydah, also now in U.S. custody, was little more than a travel agent for terrorist wannabes making their way to the al-Qaida camps.
Ressam is expected to testify at the trials of these and other suspected terrorists.
So it is that Ahmed Ressam — the boy who loved to fish in the Mediterranean, the teenager who loved to dance at discothèques, the young man who tried and failed to get into college, who connected with fanatical Muslims in Montreal, who learned to kill in bin Laden's camps, who plotted to massacre American citizens — has become one of the U.S. government's most valuable weapons in the war against terror...
Ressam's information was given to anti-terrorism field agents around the world _ in one case, helping to prevent the mishandling and potential detonation of the shoe bomb that Richard Reid attempted to blow up aboard an American Airlines flight in 2001"
Posted at:
http://smallwarsjournal.com/blog/2007/10/waterboarding-is-torture-period/
Very well and fairly done, Mystic.
The key here is not that there aren't legitimate counterarguments to Yoo's positions, but that until the legal "truth" has been established by the Supreme Court or the constitutional process, principled disagreement is possible without villainizing either side.
I have trouble with the president being able to abrograte a treaty ratified by the Senate, but I imagine if the US were attacked by a nation with whom we had a non-aggression treaty, the president could declare the treaty void.
Neither do I necessarily agree with anything Yoo holds, but I will admit that his [somewhat Hobbesian] core argument that self-defense is the first right and trumps all other considerations for the president, who is explicitly constitutionally empowered as commander-in-chief is a strong one.
And, anonymous [the Good Anonymous, I hope], that's not a legalistic argument at all, but a philosophical one, well-rooted in reality.
But it's the definition of a *legalistic* argument, as a careful reading of the lawyers' comments at Balkin would tell you. You can call it a "philosophical" one, but one can call any ad hoc postulation of an idea invented from whole cloth *philosophical*.
Briefly summarized, the Yoo world-view is that, in a time of war, Article II trumps all Article I powers. And for Yoo, it does so even in instances where the Constitution's text itself vouchsafes a power to Congress, (as in the case of legislation concerning captured enemies), or forbids actions of a certain kind by the executive branch (i.e., the search-and-seizure restrictions of the Fourth Amendment).
The obvious underpinning of this worldview is the "unitary" executive and "inherent powers" of the executive being supreme, particularly in a time of war. Now, why would one arbitrarily assume that powers "inherent" in Article II automatically trump those of Article I like Congress' power to make rules concerning "captures on land and water"?
Inductive logic which takes into account who Yoo's clients and their other positions yields the conclusion that the sole objective was to accrue more power to the executive. Also what else should we conclude about Yoo's eliding of the two most germane USSC decisions, Quirin and Youngstown, in favor of OLC memos from the Reagan and Bush Administrations? And what about the Bush administration's resistance to having their theories tested in court, especially after changing their mind when they saw they were headed for a certain loss in Padilla and were handed an actual loss in Hamdi?
As I said, the whole thing reeks of a mob lawyer looking for a legalistic justification for his client being able to do what he wants. Just because it contains all those neat footnote-y things doesn't mean it's not atrocious legal reasoning. The president can't by lawyerly fiat append powers which he thinks are *inherent* onto his office, especially when they conflict with the explicitly enumerated powers of another branch of government.
I've only (so far) skimmed a very small part of this John Yoo memo, so take this with a grain of salt. I think it's attacking a straw man. Due process, in the expansive sense of English common law, and the Bill of Rights applying to prisoners of war? No way. Duh!
There is of course an American core value rendered into law that the handling of prisoners should nonetheless be orderly and lawful. Third Geneva is one citation. But the JAG Corps is not the front lines in any war.
The typical Bushist rationales in this Yoo memo (as in all the Yoo memos) imagine that the Constitution means king of the military when it labels the President CINC. These ideas are bullshit, as the Constitution explicitly provides for Congress to set limits on the President's power to use the military and to regulate the behavior of the military. Of course, the Bushists have completely ignored these provisions, as with anything else in the Constitution that might impinge on their power.
Let me also add that I don't object to the concept of *inherent powers* per se. One can't reasonably object to the premise that the president, in order to function as the executive of the government, needs to be able to empower beuracrats and operatives in the executive branch to act on directives, execute orders etc., for example. In other words, delegate such powers as are necessary to faithfully execute the laws which the Constitution enumerates and Congress enacts.
However, since our government overall, and the presidency in particular, are constructs, the proper assessment of what powers each branch has should be construed narrowly as a default practice. This is so because the Constitution does not represent an accounting of powers that already existed in some state of nature. Rather, it represents a GRANTING of power from the people to our elected representatives to help secure our rights.
Therefore, the only power which may "inhere" in any office is solely that which is necessary to conduct its business and certainly not any which is EXPLICITLY granted to another branch of government.
Well, there's a lot in your comments, Anonymous. Sometimes, I don't really know what you're talking about. However, it seems to me you make three points:
1) Yoo developed this memo in order to provide a way for the administration to perform illegal acts, legally.
2) Something about how torture is "undeniably a wrong" and that the only reason you would do it to save your family is because of some moral obligation you owe to them (although you're not really sure you would do it to save your family - yikes!). You then state that the government doesn't have this same form of moral obligation and therefore they can't operate on this principle. You would expect no legal immunity or leniency for your actions.
3) Some legal assertions that I just don't have time to research.
So I'll try to respond to one and two in order:
1) Yoo developed this memo in order to provide a way to perform illegal acts, legally.
Yes, I've heard many asserting this. My point of reading the memo was, in fact, provoked by this and other similar assertions. I wanted to find out if this was blatantly true or if people were just [unjustifiably] hopping on the bandwagon because they're so [justifiably] pissed at the administration. I don't intend to imply that Yoo is my "friend" as you implied or that I agree with the administration's behavior. My goal was to find out if, in this particular instance, people were going overboard.
My findings indicate that there is at least some reason to believe that they are. You are very convinced that Yoo is some sort of mob lawyer just trying to find legal loopholes. I didn't see too much evidence for that in his memo, honestly. As my summary shows, it seemed to me that he laid a pretty clear scenario in which torture is permissible - not an open, loosely structured one into which he could fit any administrative behavior. I will say that there were some quotes that, especially when taken out of context, gave a bit of the impression that he was trying to do this, but when seen in the overall construction of the memo, I've got to conclude that either he was being slightly careless in those instances or that he just sucks at creating legal loopholes, since he pretty narrowly defines and describes everything he's talking about.
For instance, he didn't just make an argument that the Constitution grants the president untouchable power in wartime. He instead made the argument that numerous international treaties say that nothing can subvert a nation's right to defend itself and that therefore the CAT could not stand in the way of this self-defense. If, therefore, the extremely narrowly defined and rare situation arose where the ONLY way to stop catastrophe was to torture the applicable information out of someone, then it would not be illegal to do so.
So that's my response to your first point - it doesn't seem that he was just going nuts - it seems more like, if you read the thing, he very carefully noted the specific kind of scenario in which torture is permissible and laid it out.
2) Something about how torture is "undeniably a wrong" and that the only reason you would do it to save your family is because of some moral obligation you owe to them. You then state that the government doesn't have this same form of moral obligation and therefore they can't operate on this principle. You also say that you would expect no legal immunity or leniency for your actions.
I found this to be fairly weakly developed. I've got a couple of problems with it:
A) Torture is not ALWAYS undeniably wrong. I think it's fairly obvious that if you walked into your house and saw a man press the button on a bomb (let's say nuclear, so there's no way to escape the blast radius), initiating the countdown, the ONLY way to stop it being with a code known by the bomber, it would not be immoral for you to grab him and demand that he give you the information that would permit you to defuse the bomb, threatening torture at first, and then engaging in torture when he failed to comply.
[sidenote: I say again, I can't emphasize enough the movie-esque unlikeliness of the actualization of these situations. Therefore, Yoo's memo and this rationale may never even come into play.]
That seems perfectly reasonable to me. If that's right, it seems that torture is not ALWAYS an "undeniable wrong".
B) It is, in fact, a big part of the government's role to protect the constituents of the nation which it governs. I don't know why you think this is somehow based on a sort of moral obligation owed to a family. It's not. If you want moral grounding for it, I'd say it's based on preventing the suffering of the innocent at the hands of a malevolent psychopath. I would hope that such justification would convince you that torturing a lunatic in order to save your family is a worthwhile endeavor. Fuck, if some guy had a bomb strapped to my cat, you better believe I'd torture the shit out of him until he told me how to defuse it.
I find nothing immoral about this. If you met my cat, I believe you would quite agree.
I would like to note, however, that this does not make me some sort of torture-monger. In fact, I'm of the opinion that the greatest warrior is he who can do the least to deflect the most. That is, if someone comes at me with a knife, my preferred ending is him on floor, knife in wall, me standing over him - NOT him on floor, knife in him, me standing on him.
In fact, I've been in three fights in my life - I've won all of them, but I've never hit anyone. I believe this is a good thing. In fact, I've never hit anyone in my life and the thought of hurting someone is not appealing to me. However, even I can still come to the conclusion that, if you want to play the violence game, it's not your victim's responsibility if you end up getting hurt. It's not fire's responsibility if you get burned. Fire just does what it does - people just do what they do. That is, fire burns those who touch it, and people (animals) defend themselves when attacked!
C) Mr. Yoo was trying to point out that we don't need to modify current laws because there is no legal penalty for what would otherwise be known as torture when practiced in the specific kinds of situations that he references. So, you shouldn't expect legal immunity, no. What you SHOULD expect is that you won't be prosecuted for that which is not illegal: namely, those kinds of activities in those kinds of situations described by John Yoo.
Finally, it's important to note that none of what John Yoo wrote (as far as I saw) protects the administration from the possibility of prosecution. They can't just torture someone because they want to. If a case were to be brought against them for torture, they would have to, as John Yoo points out, defend themselves by asserting that the actions were performed because it was justifiably believed that there was an imminent threat of sufficient magnitude that could ONLY be prevented through that which would otherwise be considered torture.
It's up to the individual analysis of each situation as to whether or not the administration misbehaved. Is there evidence of such misbehavior? Well, if the reports I've heard about that poor guy who was captured and tortured with no links to terrorists are correct, I'm going to go with yes. There's almost no way I can think of that a government would arrive at the virtual certainty that is required for the permissibility of torture without it actually being true (that torture is appropriate and the only means of stopping the situation, etc.).
So there you go. I hope that helps and clarifies some points. I'm not defending the administration - I'm merely pointing out what was written in John Yoo's memo and how it was understood by a layman. I'm totally open to it being the case that John Yoo is wrong about the law, and I could be wrong, but I'm fairly sure that he's not wrong about when torture is morally permissible.
What's left to find out, for me, is not so much whether or not Yoo is legally correct, as I found his arguments compelling (again, from a layman's perspective), but whether or not the administration engaged in these activities too loosely, and what degree of looseness was involved. That is how I suggest we judge the transgressions of the administration on this matter.
That's all.
Mystic,
You have certainly given a well-reasoned and cogent reply. However, I think you're missing my point by conflating morality and the law. I believe that they sometimes overlap, but not necessarilly.
You seem to conflate them here:
"It's up to the individual analysis of each situation as to whether or not the administration misbehaved. Is there evidence of such misbehavior? Well, if the reports I've heard about that poor guy who was captured and tortured with no links to terrorists are correct, I'm going to go with yes. There's almost no way I can think of that a government would arrive at the virtual certainty that is required for the permissibility of torture without it actually being true (that torture is appropriate and the only means of stopping the situation, etc.).
So there you go. I hope that helps and clarifies some points. I'm not defending the administration - I'm merely pointing out what was written in John Yoo's memo and how it was understood by a layman. I'm totally open to it being the case that John Yoo is wrong about the law, and I could be wrong, but I'm fairly sure that he's not wrong about when torture is morally permissible."
The point is this: there is no reason to believe that our government, the administration in particular, or even John Yoo in more particular, is in any way a valid moral arbiter. Their jobs are to support and defend the Constitution, as they swore an oath to do. Moral judgment is I feel best left to philosophers, clergy and peoples' consciences. The idea that they function as moral judges just seems to me to be completely contrived.
This is why I insist that I really don't care when John Yoo feels torture is *morally permissible*. That's for the individual actor to decide. Or for a jury to nullify if their collective consciences lead them to believe that the defendant had a moral duty that overrode his or her duty as a servant of government.
In my own case, I do feel such an obligation to my family, but as I said, what does that have to do with what the law is? And from where does the power of government officials to make *moral* decisions that conflict with their duty as a government official derive?
This is why extreme, boundary-forming cases make shitty law. You seem to believe this too when you say: "There's almost no way I can think of that a government would arrive at the virtual certainty that is required for the permissibility of torture without it actually being true (that torture is appropriate and the only means of stopping the situation, etc.)" Well, the problem is that one can almost always make the plausible case that at the time the person reasonably believed that to be true.
I'm also left wondering whether you would have opposed the prosecution of Japanese and German interrogators for methods that we are now sanctioning? Is it just the case of our ends are more just? Or that they were the aggressors in the first place? They could certainly make the case that there were compelling reasons to get the information; definitely so, I would say in the example I gave about gleaning information about planned bombings of Dresden. I don't find these rationales adequate, so can you offer others?
What's more, if we can reasonably ask our military personnel to risk severe injury and even death to protect us, why is it unreasonable to expect interrogators to risk a loss of freedom for stepping over the line while also protecting our freedom?
BTW, I wasn't implying that Yoo was your 'friend', I was actually referring to your friend who sent you the article, according to Winston's post.
I think you're being a bit too generous here, Mystic. Yoo's argument is not just that torture could be justified under a defense of necessity or self-defense in certain circumstances. He only gets to that argument after defining torture in such a way that it would be damn difficult to actually commit torture, and then claiming that even if someone did manage to satisfy his definition of torture, if the executive ordered it, then CAT is suspended and the torturer is not subject to any criminal law. It's only after those arguments that he throws in the necessity and self-defense.
So it's true that part of his argument is that torture could be justified in certain limited situations. But the bigger part of his argument is that (a) most of the stuff most people would consider torture isn't really torture under the U.S. interpretation of CAT, and (b) even if it is the president can suspend CAT.
His arguments for (a) are just plain terrible, and the kind of reasoning he uses there, I think, justifiably counts against taking anything else he says seriously, or as being made in good faith.
According to Yoo, the U.S. understands CAT to prohibit interrogators from causing "severe physical pain" or "prolonged mental harm."
He gets his definition of "severe pain" from a statute defining when emergency treatment is required by law. There the law says severe pain can be an indicator of death, organ failure, or severe impairment of bodily functions. It's pretty clear that the law here is not defining 'severe pain,' and it's even more clear that the statute says nothing that should lead one to believe that the law considers pain to be severe *only* if it indicates death or organ failure.
But that's exactly how Yoo reads it. From the fact that the law says severe pain might indicate a serious medical condition, he reasons that any pain that fails to indicate such a condition fails to count as severe.
With respect to "severe mental suffering," he notes that the U.S. understands that to involve prolonged mental harm. Yoo interprets this to mean something like PTSD or chronic depression. So for an act to count as torture on account of mental suffering, it must result in PTSD, chronic depression, or some other long term mental illness.
But on top of that, the person engaged in the act must specifically intend to cause the prolonged mental harm. That is, to be guilty of torture on Yoo's understanding, the torturer has to intend to cause PTSD or chronic depression. Threatening imminent death is not enough.
I just don't see these kinds of arguments as deserving the kind of sympathetic reading you seem to be giving them.
As to the law and precedent, as I alluded to, Yoo's failure to address one of (perhaps the most) crucial precedents, Youngstown v. Sawyer, speaks volumes about his professionalism as a constitutional lawyer and his intent in drafting the memo:
http://firedoglake.com/2008/04/09/how-did-yoo-manage-to-leave-out-youngstown-steel/
Firedoglake. Sigh. Real bottom-trolling.
Youngstown applies to domestic affairs, as does the Posse Comitatus Act, which limits what the C-in-C can do on American soil to American citizens.
Completely irrelevant here.
Youngstown is about Constitutional limits on Presidential power in the context of national security claims. Of course it's relevant. I'd say it's the R-elephant in the room...
FDL is a serious-minded site. If you want left-leaning "trolling" (sic), may I recommend democraticunderground.com. Not as rabid as LGF or a zillion other sites on your end of the spectrum, but - at least a couple of years ago when I stopped reading it - lots of all-caps and conspiracies.
Rotgut - it seemed to me that Yoo grounded his assertions that the President could suspend CAT in the idea that he would do so due to the need of self-defense. I didn't take them as separate claims. For, as you note, if the President could simply suspend any treaty at any time for any reason, why would he even give an argument about justifying the actions through self-defense?
He may be separating them, however. I would definitely not approve of the idea that the President is free to suspend treaties for any reason whatsoever (I mean, that would kinda destroy the purpose of treaties..).
However, if he was justifying torture in the way in which I thought he was, then I don't see a problem with it. Legally, perhaps I'm not qualified to understand it, but morally, I am, and if it complies with good moral standards, I see no reason to oppose its legal justification.
But, if, as you say, it's as bad as you say it is, I guess I'd have to recant my support of John Yoo's position. I'd have to read it again to see if your pessimism is correct, and I really don't have time, but I'll keep your analysis in mind.
Thanks for the input.
Rotgut - it seemed to me that Yoo grounded his assertions that the President could suspend CAT in the idea that he would do so due to the need of self-defense. I didn't take them as separate claims. For, as you note, if the President could simply suspend any treaty at any time for any reason, why would he even give an argument about justifying the actions through self-defense?
He may be separating them, however. I would definitely not approve of the idea that the President is free to suspend treaties for any reason whatsoever (I mean, that would kinda destroy the purpose of treaties..).
However, if he was justifying torture in the way in which I thought he was, then I don't see a problem with it. Legally, perhaps I'm not qualified to understand it, but morally, I am, and if it complies with good moral standards, I see no reason to oppose its legal justification.
But, if, as you say, it's as bad as you say it is, I guess I'd have to recant my support of John Yoo's position. I'd have to read it again to see if your pessimism is correct, and I really don't have time, but I'll keep your analysis in mind.
Thanks for the input.
Mystic,
The issue once again is separating the moral and legal analysis.
So while it may be morally defensible to some that the president can suspend, or at least practically suspend, some treaties as a means of self-defense, there is no sanction in the law for such an action, given its violation of the separation-of-powers doctrine. Hence, it would carry no weight, legally (thus the necessary qualifier 'practically suspend'). From the Youngstown decision:
"The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself...In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof...The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."
And from Justice Frankfurter's concurring opinion:
"To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded - too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. [343 U.S. 579, 594] The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority."
Which brings me back to the point about Yoo. Since his function in his position within the DOJ was to opine on the *law*, it makes no sense to attach any particular weight or value to his moral judgments. His standing to make moral judgments is not elevated by virtue of him being a government lawyer; there is, in fact, no reason to value his moral judgement over mine or yours or Winston's, except to the extent that they are in fact stronger than ours when subjected to philosophical scrutiny.
To attempt to use the plausible *moral* assertion that desperate times call for desperate measures to justify *legally* illegitimate positions is to place moral decision-making where it doesn't belong.
My $.02.
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