The Yoo memorandum, Part II

Returning to the issue of torture and John Yoo’s famous memorandum of March 14, 2003, I now take up the question of the treaties to which the United States is a party, specifically the Convention Against Torture, adopted by the UN in 1984 and ratified during the first Bush Administration. It reads, in part:

Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. [Emphasis added.]

Now the founding fathers did not mince words about the authority of treaties. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;” states Article VI, part 2, “and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” Parts of this treaty, however, are clearly designed not to be “self-executing,” as Chief Justice Marshall put it: they ask each state to pass laws implementing some of its provisions, and the United States has indeed done just that. The applicable law, Section 2340 of the US Code, states:

As used in this chapter -

(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from -
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) 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.

The treaty the implementing legislation seem to erect formidable barriers against what the Bush Administration wanted to do, but John Yoo and his colleagues were equal to the task. The first Bush Administration, they say, made clear exactly what the US was agreeing to when Section 2340, above, was passed—and they argue that the US definition of torture focused upon the specific intent to inflict “severe physical or mental pain or suffering” was narrower than that of the CAT (Convention Against Torture.) In essence, because the U.S. law, unlike the Convention, did not specifically mention pain and suffering “intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession,”Yoo argues that the United States law was not designed to ban such a practice. What we all have to understand about the Administration’s arguments—and these particular arguments persisted years after the extreme claims of Presidential power had been dropped—that they regard only acts designed for the express, if not sole, purpose, of inflicting lasting physical or mental pain and suffering upon the victim constitute torture and are therefore illegal. If an interrogator had substantial reason to believe that his prisoner would recover from whatever physical or mental pain he was inflicting, he was not, in this view, guilty of torture. To me this is a patently absurd construction. Since every nation on earth presumably bans the intentional infliction of permanent physical or emotional damage, it would make the whole treaty completely unnecessary.

Unfortunately for Yoo, it was not at all clear, to put it mildly, that that was the intent of the Bush Administration. As his memo says, nations signing and ratifying treaties can add “reservations,” indicating that they do not regard themselves as bound by certain provisions, or “understandings,” which do not exempt them from any provisions. Yoo’s problem is that the first Bush Administration did not file a reservation in this sense—but he was not going to be deterred by that. I quote:

“A reservation is generally understood to be a unilateral statement that modifies a state party's obligations under a treaty. The ratifying party deposits this statement with its instrument of ratification. See, e.g., Memorandum for the Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Genocide Convention at 1 n.l (Jan. 20, 1984). By contrast, an understanding is defied as a statement that merely clarifies or interprets a State party's legal obligations under the treaty. Such a statement does not alter the party's obligations as a matter of international law. How a party characterizes a statement it deposits at ratification is not, however, dispositive of whether it is reservation or understanding. See Letter for Hon. Frank Church, Chairman, Ad Hoc Subcommittee on the Genocide Convention, Committee on Foreign Relations, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel at 2-3 (May 8, 1970). Instead, whether a statement is a reservation or understanding depends on the statement's substance. See Memorandum for the Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Genocide Convention, at 2 nA (June 1, 1982). Here, although under domestic law, the Bush administration's definition of torture was categorized as an "understanding," it was deposited with the instrument of ratification as a condition of the United States' ratification, and so under international law we consider it to be a reservation if it indeed modifies CAT's standard.”

One is once again struck, reading this memo, how a direct line runs from Assistant Attorney General William Rehnquist, who served under President Nixon and endorsed many of his claims of absolute executive power, through Theodore Olsen, who did the same for Ronald Reagan, and then to John Yoo. Much of what they argued, however, was never endorsed either by Congress or the Supreme Court, and President Nixon, of course, lost his office because of his adherence to doctrines of absolute presidential power in matters relating to national security.

Turning Section 2340 into a reservation, however, doesn’t solve all the problems. “To be sure, the Vienna Convention on Treaties recognizes several exceptions to the power to make reservations. . . . First, a reservation is valid and effective unless it purports to defeat the "object and purpose" of the treaty.” That, of course, is exactly what the whole memo is designed to do—to make what it outlawed, torture, permissible.

“Some may argue that permitting the assertion of justification defenses under domestic law, such as necessity or self-defense, would place the United States in violation of its international obligations. Such an argument would point to article 2(2) of CAT, which provides that '~[nJo 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 tonure." 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 se1f-defense is well established under international law. As we have explained elsewhere, it is a right that is inherent in international law and in the international system.”

“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. Further, if the President ordered that conduct, such an order would amount to a. suspension or termination of the Convention. In so doing, the President's order and the resulting conduct would not be a violation of international law because the United States would no longer be bound by the treaty.”

The President of the United States, then, is not bound by any treaty—or, as we have seen, in their opinion, by any law or provision of the Bill of Rights—provided that he believes he is engaged in the defense of the country. One of several critical Supreme Court decisions which this doctrine flagrantly contradicts is, of course, Ex Parte Milliken, which held after the civil war that civilian prisoners could not be tried in military courts even in the midst of a great rebellion, and which the memo, naturally, ignores. Until at least the Second World War, the United States was one of the world’s leading advocates of binding international law. It is sad to see an American administration declare that the President in foreign policy is effectively an absolute monarch.

Quoting the convention, they manage to leave out the explicit reference to acts designed to secure a confession. They then get to work depriving the prohibitions against lesser forms of cruel, inhuman or degrading treatment, as follows..

“In its instrument of ratification to the Torture Convention, the United States expressly defined the term "cruel, inhuman, or degrading treatment or punishment" for purposes of Article 16 of the Convention. The reservation limited "cruel and unusual or inhumane treatment or punishment" to the conduct prohibited under the Fifth, Fourteenth and Eighth Amendment. They then argue that the relevant Eighth Amendment cases deal with the rights of prison guards to deal with inmate uprisings, and that the courts have found that force proportional to the need is appropriate—and then, of course, they are home free, arguing that any interrogation techniques proportional to the need to secure information would be fine as well. “Here, depending upon the precise factual circumstances, such teclmiques may be necessary to ensure the protection of the government's. interest here-national security. As•the Supreme Court recognized in Haig v. Agee, 435 U;S. 280 (1981), "It is 'obvious and unarguable' .thaLno governmental interest is more compelling than the security of the Nation."

“Although the substantive due process case law is not pellucid, several principles emerge. First, .whether conduct is conscience-shocking turns in part on whether it is without any justification, i.e., it is "inspired by malice or sadism."• Webb, 828 F.2d at 1158. Although enemy combatants may not pose a threat to others in the classic sense seen in substantive due process cases, -the detainees here may be able to prevent great physical injury to countless others through their knowledge of future attacks. By contrast, if the interrogation methods were undertaken solely-to produce severe mental suffering, they might shock the conscience.”

Here Yoo was returning to some of the logic of earlier parts of the memo: the treatment of detained Al Queda and Taliban suspects (which is all many of them ever were) as if they were actual armed soldiers still engaged in combat. Because the Supreme Court has allowed prison authorities to use substantial force to suppress riots, they are arguing, the same kind of force can be used against helpless detainees who might have some information useful to the United States.

Other memos, written by other members of the OLC, relied much more heavily on the issue of “intent” to de-criminalize every proposed form of interrogation, including waterboarding. Waterboarding obviously posed the greatest problem because the CAT explicitly prohibits threats of imminent death, which is exactly what waterboarding is. But the OLC argued that since the interrogators did not expect anyone to die of waterboarding, they were not in fact threatening their prisoners with imminent death. They never mentioned, of course, that Japanese soldiers had been convicted and sentenced (I am not sure how severely) for waterboarding by American military courts after the end of the Second World War.

This memo, and some of the others, essentially did two things: to argue that the President wasn’t bound by any laws or treaties, but that if he was, they didn’t mean what they said—and in any case (see above), he could withdraw the United States from the treaty simply by breaking it. If the United States does not find some way to discipline the authors of these memos, we will have accepted their arguments, however invalid they may seem to any reasonable person, as within the purview of the President to adopt and implement. We will have announced, in effect, that the United States will torture prisoners only when we have a President who wants to do so. That claim will not earn us much trust around the world. The argument from necessity, I predict, will also turn out to be baseless when (as is now rumored to happen) the CIA Inspector General’s report on these interrogations is released, detailing what was and what was not learned as a result of torture. In a sense we should not be shocked by all this. As I have mentioned here many times, both Jefferson and Madison realized when the Bill of Rights was adopted that they would at some point be violated by a power-hungry executive—but Jefferson argued that their inclusion in the Constitution would make it easier to restore them after a crisis had passed. That is what we must now find some unequivocal way of doing. The floor is open for suggestions.