Prof. John Yoo published an op-ed in the LA Times today entitled With 'All Necessary and Appropriate Force'. As Prof. Yoo worked in the Justice Dept. During 2001-03, and by all accounts had a major hand in the drafting of Justice Dept. memos relating to the rules applying to the treatment of al Qaeda and other persons labeled by the administration as
non-persons enemy combatants, his comments deserve careful attention.
Official Washington has been struck by a paroxysm of leaking. It involves classified memos analyzing how the Geneva Convention, the 1994 Torture Convention and a federal law banning torture apply to captured Al Qaeda and Taliban fighters. Critics suggest that the Bush administration sought to undermine or evade these laws. Sen. Dianne Feinstein (D-Calif.) claimed this week that the analyses appeared “to be an effort to redefine torture and narrow prohibitions against it.”
Yes, that's more or less what it looked like all right. Or, as one pithy letter-writer to the Washington Post put it, “How is it that the Defense Department, the Justice Department, and the White House counsel's office were all writing lengthy and detailed memos on the laws against torture, how to get around the laws against torture, and the president's alleged authority to 'set aside' the laws against torture, and yet nobody had any intention of torturing anybody?”
This is mistaken. As a matter of policy, our nation has established a standard of treatment for captured terrorists. In February 2002, President Bush declared that the detainees held at Guantanamo Bay, Cuba, would be treated “humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles” of the Geneva Convention. Detainees receive shelter, food, clothing, healthcare and the right to worship.
Ok, we're already at the first disingenuous loophole: “a standard of treatment” tells us nothing about what sort of standard. “Kill them all” is a standard. As for the promise of humane treatment, what is that worth when it's qualified by “to the extent appropriate and consistent with military necessity”?
This policy is more generous than required. The Geneva Convention does not apply to the war on terrorism.
Actually, this statement is dangerously false. The Geneva Convention does not apply to terrorists on our shores–but the Bill of Rights does. As regards foreign nationals in foreign countries where we are conducting military operations, the Geneva Conventions clearly contemplate a dichotomous world: there are foreign uniformed troops, who get POW status if caught, and there are foreign civilians, who do not, but instead benefit from certain limited protections for civilians. Irregulars who take up arms can be treated as criminals, can be tried, can be shot if there is a death penalty. POWs can't be tried, and are entitled to a set standard of treatment that in many countries exceeds what civilian prisoners would get. Furthermore the Geneva convention system provides for a system by which military captors must hold a hearing to determine the status of a captured combatant before determining that they are not entitled to POW status. We've failed to do this in Afghanistan and Iraq, although we did manage somehow to do it in the first Iraq war.
It applies only to conflicts between its signatory nations. Al Qaeda is not a nation; it has not signed the convention; it shows no desire to obey the rules. Its very purpose — inflicting civilian casualties through surprise attack — violates the core principle of laws of war to spare innocent civilians and limit fighting to armed forces. Although the convention applies to the Afghanistan conflict, the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war.
By joining Al Qaeda or the Taliban, much less by being accused of joining by Mr. Yoo and others, persons forfeit neither their citizenship nor their humanity. Al Qaeda is not a country. It cannot sign the Geneva conventions. But its fighters often are citizens of signatory countries, or are fighting on behalf of signatory countries. The idea that the US can unilaterally say that accused Al Qaeda and Taliban members are, by virtue of the accusation, removed from the Geneva conventions is dangerous nonsense, and an ugly precedent that will surely come back to haunt us. To the extent that particular fighters violated their rights to POW status by, for example, not wearing uniforms, our obligation under those same conventions is to treat them as POWs until we give them a hearing.
It is true that the definition of torture in the memos is narrow, but that follows the choice of Congress. When the Senate approved the international Torture Convention, it defined torture as an act “specifically intended to inflict severe physical or mental pain or suffering.” It defined mental pain or suffering as “prolonged mental harm” caused by threats of physical harm or death to a detainee or a third person, the administration of mind-altering drugs or other procedures “calculated to disrupt profoundly the senses or the personality.” Congress adopted that narrow definition in the 1994 law against torture committed abroad, but it refused to implement another prohibition in the convention — against “cruel, inhuman or degrading treatment or punishment” — because it was thought to be vague and undefined.
Physical and mental abuse is clearly illegal. But would limiting a captured terrorist to six hours' sleep, isolating him, interrogating him for several hours or requiring him to do physical labor constitute “severe physical or mental pain or suffering”? Federal law commands that Al Qaeda and Taliban operatives not be tortured, and the president has ordered that they be treated humanely, but the U.S. is not required to treat captured terrorists as if they were guests at a hotel or suspects held at an American police station.
Another disingenuous move. Neither six hours sleep nor “several hours” of interrogation are illegal acts. But that's not what we're talking about. We're talking about scaring people with dogs, about contests to see how many detainees could be so terrified they peed on themselves. We're talking about 16 hours of continuous interrogation, and suicide attempts. We're talking about telling people they were about to be killed. We're talking about simulating telephone conversations in which detainees were told their families were being held on the other end of the line and would be harmed if the detainee didn't talk. We're talking about not jjust threatening but abusing kids to make parents talk. We're talking about raping women and children of both sexes. We're talking about atrocities.
Treating “captured terrorists as if they were guests at a hotel”? The word “offensive” is really too mild for this sort of argumentation.
Finally, critics allege that the administration wants to evade these laws by relying on the president's commander-in-chief power. But the 1994 statute isn't being evaded, because the president's policy is to treat the detainees humanely.
WHOOPS! What happened to “to the extent appropriate and consistent with military necessity”?
Besides, that statute does not explicitly regulate the president or the military. General criminal laws are usually not interpreted to apply to either, because otherwise they could interfere with the president's constitutional responsibility to manage wartime operations. If laws against murder or property destruction applied to the military in wartime, for instance, it could not engage in the violence that is a necessary part of war.
Non-sequitur. Straw man. No one has suggested that the statute prevents military operations. Just military torture. And since the statute is part of our observance of the Geneva Conventions, it's hardly odd to read it to apply to the military – since that's to whom the Geneva Conventions apply.
But suppose Congress did specifically intend to restrict the president's authority to interrogate captured terrorists.
Ok, back to reality.
As commander in chief, the president still bears the responsibility to wage war. To this day, presidents from both political parties have refused to acknowledge the legality of the War Powers Resolution, which requires congressional approval for hostilities of more than 60 days. (President Clinton ignored it during Kosovo.) And in the war on terrorism, Congress has authorized the president to use “all necessary and appropriate force.”
Non-sequitur again. No President has ever previously suggested that the Torture Statute was either unconstitutional or didn't apply in wartime.
By exploring the boundaries of what is lawful, the administration's analyses identified how a decision maker could act in an extraordinary situation. For example, suppose that the United States captures a high-level Al Qaeda leader who knows the location of a nuclear weapon in an American city. Congress should not prevent the president from taking necessary measures to elicit its location, just as it should not prohibit him from making other strategic or tactical choices in war. In hearings this week, Sen. Charles E. Schumer (D-N.Y.) recognized that “very few people in this room or in America … would say that torture should never, ever be used, particularly if thousands of lives are at stake.”
This is so wrong on two levels. First off, not one of the memos at issue is about the rare hypothetical 'terrorist known to have an a-bomb in NY' (TABNY) scenario. Rather, they are about the care and torture of all so-called 'enemy combatants'. Not a single one of these people has ever been alleged to have WMDs in the US. It may be that many people got tortured for denying knowledge of the existence of WMDs in Iraq, but the evidence points rather strongly in the direction that these weapons never took the trouble to exist.
Prof. Yoo's resolution of the TABNY scenario is wrong on its own terms too, because it legitimates a torture regime that, even judged by its own starkly utilitarian morality, will inevitably err on the side of excessive torture . Explaining why that is is a little complicated, so I'm going to defer that to another posting that I'll put up no later than Monday.
Ultimately, the administration's policy is consistent with the law.
“Consistent with the law” because (although Prof. Yoo has soft-pedaled it in this op-ed) the memo says that the Constitution allows the President to do what he wants if he justifies it by miliary necessity.
If the American people disagree with that policy, they have options: Congress can change the law, or the electorate can change the administration.
True. But you left one out: the courts can find that your interpretation sounds in Nuremburg.