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Mad About Yoo

By Megan Kinneyn | Sep. 2, 2007
News

Law Office Management

Sep. 2, 2007

Mad About Yoo

As the mastermind behind the Bush administration's so-called torture memo, law professor John Yoo has been accused of being a dangerous ideologue, even a war criminal. But to this day, he stands by his record of government service. By Martin Lasden

By Martin Lasden
     
      Constitutional law professor John Yoo insists that in the war on terror, the president can ignore all bans on torture. Got a problem with that?
     
      Years before he was known as the mastermind behind the Justice Department's infamous "torture memo"?a document so politically embarrassing that the Bush administration itself eventually retracted it after it was leaked to the press?John Yoo was viewed by his academic peers as a brilliant iconoclast, with some very interesting things to say about the supremacy clause, the force of international law, and the powers of the commander-in-chief. But writing for publications such as the Michigan Law Review or the Chicago Journal of International Law is one thing; writing legal opinions for the Justice Department on what a president can and cannot do after a terrorist attack is quite another.
      The torture memo was one of a series of secret opinions drafted after 9/11 by Yoo and other members of an elite group of Justice Department law-yers called the Office of Legal Counsel (OLC). Those opinions advanced legal theories that would give the president the power to ignore both international treaties and domestic laws, eavesdrop on U.S. citizens without warrants, and order the torture of suspected terrorists. It was tough stuff, authored by lawyers who were willing to push hard against the conventions of legal analysis to fight the war on terror. ("Legal formalism run amok," is how one commentator described a passage.) And no one, it seems, was willing to push harder than John Yoo, who at age 35 had just started the second half of a two-year leave of absence from UC Berkeley's Boalt Hall School of Law, where he held a tenured position.
      To some, this makes Yoo a patriot of the first order. To others, he's a dangerous ideologue. Last year a group of human rights lawyers from the New York?based Center for Constitutional Rights filed a criminal complaint in Germany against Yoo, alleging that he and other Bush administration officials were complicit in the abusive interrogation techniques employed at both Guantanamo and Abu Ghraib. These techniques included sexual humiliation, prolonged sleep deprivation, and the use of threatening dogs. (The center filed its complaint under a German law that empowers that country's authorities to hold trials against war criminals, irrespective of who they are or where their crimes occur.)
      When the torture memo became public in the spring of 2004, it engendered an extraordinary show of outrage from politicians, civil libertarians, and constitutional scholars. But Yoo did not recoil from the maelstrom. In fact, if anything, he seemed to welcome the attention. He granted scores of interviews to the press, regularly participated in debates and panel discussions, wrote more than 50 op-ed pieces for the general press?including the Wall Street Journal and the New York Times?and published two books, one of which, War by Other Means: An Insider's Account of the War on Terror (2006), was billed as an uncompromising defense of his actions.
      In it Yoo writes: "Much of the attention on me is due to the fact there are few Bush Administration veterans who will defend their decisions in the war on terrorism in public. Some inside and outside the administration have chosen to fall silent out of lawyerly discretion, lack of time or energy, or fear of partisan attack. Others have tried to engage in a series of self-serving leaks intended to distance themselves from those decisions. I decided to explain the choices made by the Bush Administration in the very first months of the war."
      To be sure, nothing in War by Other Means or anything else Yoo has written would sway those who believe that torture can never be legally or morally justified. But most Americans probably don't hold that view. In fact, back in October 2005, when the images from Abu Ghraib were still fresh on people's minds, the Pew Research Center for the People and the Press found that 46 percent of Americans believed that torture "in order to gain important information" could at least "sometimes" be justified. Another 17 percent said they wouldn't rule it out altogether.
      Still, there is the sense that by reading the Constitution the way he did?especially when it came to presidential power?Yoo had, as a Justice Department lawyer, crossed some sort of line.
     
      Long before he became a lawyer, Yoo thought of himself as a conservative. The son of two South Korean psychiatrists, he was less than a year old when his parents emigrated to Philadelphia. There he got a first-rate education. In fact, by the time he entered Harvard as an undergraduate in 1985, he already had six years of Latin and five years of Greek under his belt, and he knew his ancient history backwards and forwards. Meanwhile, as an observer of his own time, he was deeply impressed by the Reagan Revolution and the fight against Communism.
      "I would say that conservatives are much more dubious than liberals about human nature and are much less confident of the ability of government to solve problems," he tells me one morning during the first of two visits I pay to his Berkeley office. "Conservatives would never expect to see an end to crime, for example. Or poverty. Those are, I think, more or less permanent features of the human condition."
      But if conservatives are skeptical of big government, then why, I ask him, wouldn't that same skepticism apply to presidents who would take the country to war and curb civil liberties in the process? "I think the government's primary duty is to protect the country from attack," he answers.
      Yoo is a soft-spoken, reserved man who can talk for hours without revealing very much about himself. One of the few personal details that I tease out of our discussions is that his wife, Elsa Arnett?a former journalist who happens to be the daughter of the Pulitzer Prizewinning war correspondent Peter Arnett?wishes he would stay out of the limelight. I also notice that he has a rather sly sense of humor. "Would it be accurate to describe you as the most vilified law school professor in America?" I ask him at one point. "That's just because people don't know more about what other law professors are doing," he deadpans.
      In his office at Boalt, a large Department of Justice seal hangs on the wall bearing the best wishes of former colleagues, including the then-attorney general of the United States, John Ashcroft. "Thank you for excellent service. We are stronger and safer because of you," Ashcroft wrote. Yoo also has on display a photo of the nine U.S. Supreme Court justices, taken in 1994, the year he clerked for Clarence Thomas after graduating from Yale Law School. Yoo says he particularly likes this photograph because in it the justices are pos-ing without their robes on. "I prefer to think of them as real human beings," he tells me. "Not automatons or gods."
      For all the attention that Yoo has drawn as a public servant, though, he thinks of himself first and foremost as an academic; and for all the snide things he has to say about Berkeley's left-leaning politics, he continues to feel very much at home at Boalt, where he counts as friends a number of colleagues.
      "I've known Yoo since we hired him," says Sanford Kadish, who's been a professor there since 1964. "I find him to be very funny, affable, informed, opinionated, articulate, brilliant, and perverse.
      "Yeah," he laughs, "to me his ideas are perverse. And I've often told him that I thought he was a great guy except that his views were wrongheaded."
      Another professor who knows Yoo well is Jesse Choper, Boalt's dean from 1982 to 1992. "He's a controversial guy," Choper admits, "and on basic matters regarding how the courts should treat various challenges to the Constitution, we disagree. But I like him, and we've written a few papers together."
      Students who take his constitutional law classes also seem to have a favorable impression of him. In fact, when a half-dozen protesters from a group calling itself World Can't Wait broke into his classroom one day wearing orange jumpsuits to reenact the abuses at Abu Ghraib, they were greeted with a round of boos. And on a student blog called Nuts & Boalts, I have no trouble finding bloggers who say there's a clear distinction to be made between Yoo's views and his merits as a teacher. "[W]hile almost no students agree with his views," says one, "I have never heard a student who actually took his class say they don't believe he should be here."
      Still, even among those who appreciate Yoo's charms, not everyone views him as simply misguided. Take Jeremy Waldron, one of the country's most distinguished legal philosophers, who in 1993 was on the Boalt steering committee that made the decision to hire Yoo. "John was one of a group of emerging stars who had published a lot of interesting stuff," remembers Waldron, a New Zealander who now teaches law at NYU. "I disagreed with a lot of it, but it was well argued, and I thought he was a good prospect. I actually liked him."
      A dozen years later, though, when the two met to debate each other before an audience of law students at Columbia University, Waldron admits, he had a hard time shaking Yoo's hand. "It was heartbreak-ing," he says. "John turned up and expected that we would be good friends, just as we always were. But what he did while in government, I believe, was not only wrong but criminal, and quite possibly catastrophic in terms of the reputation of the country."
      As a mid-level official, Yoo was by most accounts unusually influential at the Office of Legal Counsel. But it wasn't until late spring 2004, when he was back at Boalt, that Newsweek broke the story that dramatically raised his profile. The story described an OLC opinion, dated January 9, 2002, that had Yoo's name on it?a document that foreshadowed the torture memo to come some seven months later.
      "In a crucial memo written four months after the September 11, 2001, terror attacks," the magazine reported, "Justice Department lawyers advised that President George W. Bush and the U.S. military did not have to comply with any international laws in the handling of detainees in the war on terrorism. It was that conclusion, say some critics, that laid the groundwork for aggressive interrogation techniques that led to the abuses at the Abu Ghraib prison in Iraq."
      The Newsweek article came out about a month after 60 Minutes broadcast the first photographs from Abu Ghraib?and just a few days before the graduation of nearly 300 Boalt Hall students.
      At the amphitheater where the graduation ceremony was held, about a quarter of the students showed up wearing red armbands over their black robes to express disapproval of both Yoo and the memo. Law professor Linda Krieger remembers the scene well. She was one of the commencement speakers and had planned to deliver a fairly conventional talk. But that morning before she left her house, she read a newspaper article about the release of yet another batch of disturbing images from Abu Ghraib, and realized that she had to say more.
      "At our best," she told the graduating class, "lawyers are keepers of our peoples' most cherished values: due process, the right to be free of cruel and unusual punishment, the right to a writ of habeas corpus, the right to judicial oversight. But to do this?to stand for these values?we must use our skills, our abilities, and our privilege over and over again, to give voice to the voiceless?to stand, over and over again, directly in the path of the powerful. We must refuse to use our knowledge and skill to provide a veneer of justification when our clients propose to undertake enterprises that our moral commitments tell us are foolish or wrong.
      "Let us not fool ourselves," she added. "The law itself provides no moral compass. Hitler had lawyers too."
      Yoo was not in the audience that day, so he did not hear Krieger's remarks. As he explains it, "I didn't want to be a magnet for some sort of crazy person." But he was certainly well aware of the petition that a group of students was circulating around then, calling on him to repudiate the positions he had taken while working at the Justice Department. The petition also invited Yoo to resign his tenured position at Boalt should he refuse to recant.
      By the first of June, student organizers claimed to have collected more than 250 signatures from both law school students and alums. However, the effort soon bogged down in what, for organizers, was a frustrating debate over academic freedom. "We never asked that he actually be fired," explains Mazen M. Basrawi, one of the students behind the petition drive. "That wasn't our position at all. Nor do we believe it was ever about academic freedom. We were not interested in his academic writings. We were interested in his actions as a government official."
      As he thinks back on it, though, Basrawi, now an associate at Bingham McCutchen in San Francisco, admits that calling for Yoo to resign probably wasn't such a good idea. "We should have stayed focused on the moral position he had taken," he says.
     
      About two weeks after the Newsweek story broke, the August 2002 torture memo itself became public. It was signed by an assistant attorney general named Jay S. Bybee, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit. But soon Yoo came forward to acknowledge that he had played a pivotal role in its drafting.
      "In August 2002," the Washington Post reported, "the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad 'may be justified,' and that international laws against torture 'may be unconstitutional if applied to interrogations' conducted in President Bush's war on terrorism."
      As the memo itself declared: "Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield." The memo also provided a working definition of torture that gave maximum leeway to interrogators who might otherwise be accused of breaking a law Congress had passed in 1994 (18 U.S.C. § 2340?40A), which outlawed the torture of overseas prisoners. "We conclude," said the memo, "that for an act to constitute torture as defined in Section 2340 it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
      Such language could easily have been used to justify any of a number of abuses committed at Abu Ghraib?which, after the pictures came out, even Yoo would acknowledge amounted to illegal abuse. But the organ-failure definition of torture wasn't all that proved controversial. Critics also strongly objected to how that definition was arrived at?not through a careful analysis of international law, but rather by taking out of context the words used in a federal health care statute to define a medical emergency.
      The memo also discussed various legal defenses that interrogators might use if ever accused of violating the 1994 torture statute, such as the necessity defense. (The memo neglected to mention, however, that a year earlier a majority of justices on the U.S. Supreme Court questioned whether the necessity defense could ever be used when the federal statute in question does not explicitly provide for it.) (United States v. Oakland Cannabis Buyers' Coop (532 U.S. 483 (2001).)
      When the torture memo was leaked to the press, law professors Eric Posner and Adrian Vermeule, both then at the University of Chicago, were among the few academics who publicly defended it. "The academic critics have puffed up an intramural methodological disagreement among constitutional lawyers into a test of professional competence," they wrote in an op-ed piece published in the Wall Street Journal on July 6, 2004. "Although we disagree with some of the memo's conclusions, its arguments fall squarely within the OLC's longstanding jurisprudence, stretching across many administrations of different parties, which emphasizes an expansive reading of presidential power. ... [T]he memorandum's arguments," the professors added, "are standard lawyerly fare, routine stuff."
      However, to the vast majority of scholars who weighed in, the torture memo was anything but routine. One of the sharpest critiques came from Harold Hongju Koh, an international law expert and former OLC lawyer who had been one of Yoo's mentors at Yale before becoming the law school's dean. "[T]he August 1, 2002, memorandum is a stain upon our law and our national reputation," Koh declared in testimony before the U.S. Senate Judiciary Committee, which at the time was considering the nomination of Alberto Gonzales to succeed John Ashcroft as attorney general. "A legal opinion that is so lacking in historical context," Koh continued, "that offers a definition of torture so narrow that it would have exculpated Saddam Hussein, that reads the commander-in-chief power so as to remove Congress as a check against torture, that turns Nuremberg on its head, and that gives government officials a license for cruelty can only be described?as my predecessor Eugene Rostow described the Japanese internment cases?as a 'disaster'."
      Others who commented on the controversy include former CIA director R. James Woolsey, who said, "In a democratic country bounded by religious faith, there is no room for unbounded power over any human being," and former secretary of state Colin Powell, who declared, "The world is beginning to doubt the moral basis of our fight against terrorism." Even the former head of the Office of Legal Counsel during the Reagan administration, Douglas W. Kmiec, expressed reservations. "[I]t starts with a premise that extreme methods of interrogation are needed. Why would you start with that premise?" he asked.
      In an open letter to President Bush that summer, nearly 130 U.S. jurists, including nine former federal judges and eight past presidents of the American Bar Association, formally condemned both the January and the August 2002 memos, accusing their authors of unprofessional conduct. "The lawyers who prepared and approved of these memoranda," their statement read, "have failed to meet their professional obligations. They have counseled individuals to ignore the law and offered arguments to minimize the exposure to sanction or liability for doing so."
      Meanwhile, among a handful of scholars, mostly on the East Coast, the memos triggered a blogging frenzy that continues to this day. Martin Lederman, a former OLC lawyer, for one, now has more than 200 postings about Yoo's writings and related topics on a blog called Balkinization, which was started by a Yale law professor named Jack Balkin. "I got into this," says Lederman, "because I'm very concerned about the OLC as an institution." Georgetown University's David Luban is another academic who has devoted the past three years to writing lengthy articles dissecting Yoo's work and the torture memo. "I've said to my wife that it would be nice to go back to doing scholarship that's creating rather than destroying something," he laughs. "But it's amazing how many Americans still don't know about all this." And then there's Scott Horton, a lawyer and human rights activist who draws an analogy between Yoo's writings and those of a Nazi legal scholar named Carl Schmitt. It was Schmitt who, during World War II, advanced the theory that Germany was engaged in a new kind of ideological war against the Bolsheviks, who did not fight in a conventional manner and therefore did not qualify for protection under the rules of war.
      With respect to the torture memo specifically, what the human rights activists feared most was that it would, on a global scale, undermine the taboo against torture?a taboo that no country had worked harder to advance than the United States.
      From there, the objections got more technical. Why, the critics asked, didn't the memo mention Youngstown Sheet & Tube Co. Et Al v. Sawyer (343 U.S. 579 (1952)), which is generally considered the landmark case on the limits of presidential power in wartime? (In that case, the U.S. Supreme Court held that President Truman could not, without the approval of Congress, seize steel mills that had been shut down by a labor strike during the Korean War.) Why, in its analysis, didn't the memo refer to that part of Article 1, Section 8 of the Constitution that grants Congress the power not only to "make rules concerning captures on land and water," but also to "define and punish ... offences against the law of nations"? Why not include the position that the United States articulated in its report to the U.N. Committee against Torture in 1999, which declared, "No exceptional circumstances may be invoked as a justification of torture"?
      The questions went on. Why wasn't the torture memo circulated to other departments within the administration, such as the State Department, for review? Why was no more than a cursory analysis made of the numerous court cases analyzing the meaning of torture under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment?ratified by the United States in 1994?many of which departed from the memo's conclusions? And why didn't the Justice Department lawyers address the possibility of misidentifying terrorists?a possibility that could not reasonably be judged as remote, given reports coming out of the military as early as February 2002 that as many as half of the initial detainees at Guantanamo had little or no intelligence value?
      "I think many of the critics take the memo in isolation and its passages out of context," Yoo tells me when I start to press him on some of these points. "The memo wasn't written for the general lay public. I think it has a specific purpose, which is to interpret a statute in certain circumstances, and the questions that may have been controversial were also addressed by other memos that the office issued. And I think anyone in the government realizes it is controversial. You don't need to say, 'Oh, the conflict between the president's commander-in-chief powers and Congress's powers is a controversial subject,' because the office wrote a series of memos well before 9/11 that addressed these issues and identified them as problematic. I think the point of this kind of memo was to create clear rules."
      Yoo also explains why his superiors decided not to circulate the torture memo to other administration departments. "I think they were worried about leaks," he says, adding that if the enemy had known what American forces were prepared to do, they might have been better able to train their people to resist. And as for the legal ramifications of mistakenly torturing the wrong people, Yoo says he didn't address that issue in the memo because no one raised it.
      As Yoo answers my questions, he displays an unflappability that is impressive. But when I ask him about his views on abortion, he appears genuinely puzzled.
      It is not a gratuitous question: The August 1, 2002, memo suggests that, while a necessity defense could be used by the accused in a torture case, it might not necessarily be available to a doctor who performs an abortion, even if it is to save the mother's life.
      Does Yoo believe that torture is more defensible than a life-saving abortion?
      "I don't remember anything about abortion in the memo," he tells me.
     
      In the talks he gives around the country, Yoo likes to begin by telling his listeners how grateful he is for the chance to get away from the "People's Republic of Berkeley"?a line that always seems to draw a laugh, even from hostile audiences. He also likes to drive home the distinction between war and crime. Within the criminal justice system, he notes, the focus is on holding people responsible for crimes they've already committed. But in war, it's not about punishing anyone; it's about preventing future attacks. Hence, the need to forcefully extract information from people.
      Yoo makes the case that prisoners of war held abroad do not have the right of habeas corpus under our Constitution. At the same time, he argues that the war we are now engaged in is an unprecedented conflict against an unconventional enemy that neither qualifies for nor deserves the protections this country has traditionally provided to prisoners of war under the Geneva Conventions. That's why he's so careful to refer to the people we have locked up at Guantanamo and elsewhere as "detainees" or "enemy combatants," or "illegal enemy combatants," rather than "prisoners."
      "Look, death is worse than torture," he told a British reporter several months ago, "but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?"
      When Waldron, the legal philosopher, addressed that question in his debate with Yoo at Columbia two years ago, however, he argued passionately that there is no way to be provisionally in favor of torture?or torture lite, as some would call it?without falling into a moral abyss.
      "There's no provision in our anti-torture statute for varying the provision in times of emergency," Waldron declared. "So to sneakily mess with the definition to preserve the letter of that while undermining the spirit seems to me to be a terrible mistake and flies directly in the face of the absoluteness of the prohibition.
      "When we laid down the absolute prohibition on torture in these human rights instruments," Waldron continued, "we didn't do so as a sort of peacetime game that has no application in times like these. We laid down this norm in a calm hour no doubt specifically to constrain ourselves, because we thought we'd probably be incapable of thinking responsibly about these matters in times of panic or fear or anger. So I have no time at all for the proposition that this most fundamental of human rights requirements means one thing in peacetime and can be construed to mean another thing in times of stress and danger."
      Yoo, of course, offered a very different perspective. "Let me give a real case," he said when it was his turn to speak. "So the government captures Abu Zubaydah in the spring of 2002, who at the time is the number three leader of al Qaeda, responsible for all the operational planning, and he's been trained to resist all the standard interrogation techniques that, I think, go no further than shouting loudly or playing various good-cop, bad-cop games. So what I didn't hear Jeremy say is what he would be willing to do to interrogate that person short of torture. Now if you're going to classify torture as everything that extends beyond shouting at someone or trying to play tricks on them like good cop, bad cop, then I think we do have a difference. Should we not consider things that other democracies have done, such as Israel and Great Britain, when faced by terrorist threats?things that go beyond simple questioning? What about some of the things that the military does to its own troops in basic training. Would these all be prohibited? Would physical labor be prohibited? Would it be prohibited to let someone sleep only seven hours a day? There are a whole number of things possible that don't involve the infliction of severe physical or mental pain or suffering for the purpose of interrogation but may produce useful information, particularly from people like the leaders of al Qaeda, who have in their heads the plans for attacking the United States."
      When it was Waldron's turn again, the moderator of the debate?a Columbia law professor?asked him to consider a carefully crafted tickingtime bomb scenario. "Let's make the assumption," she said, "that interrogation procedures that involve torture yield good information. Let's assume further that a nuclear device is set to go off in an American city. U.S. authorities have 20 terrorists in custody, and we know that one of them knows where the device is and how to defuse it. Are we justified in using torture on all 20 to get the information and in the process save millions of innocent lives, or are we morally obliged to refrain?"
      "It's a bad and corrupt question," Waldron began, "but I said I would answer it, and I will. ... You could make it even worse. You can say it's a bomb planted in a New Zealand city. (Laughter) You could have the terrorists be convicted terrorists and not just suspected terrorists. The answer would be the same. It's the answer that the law requires. It's the answer that morality requires. It's the answer that my religion requires: In no circumstances is torture to be resorted to. There's nothing in the law about nuclear weapons. There's nothing in the law about people who we are sure know the location of explosive devices. The law is unambiguous. It's an absolute prohibition. And for many of us, on ethical grounds and religious grounds, it's an absolute moral prohibition as well. There are some things that are ruled out. Not everything is permissible, and you can't make things permissible simply by making the bomb bigger or changing the arithmetic. We can change the hypothetical a little bit and talk not about torture but about raping the detainees or their girlfriends ... or their mothers, and I believe for most people in this room there comes a point when you say, 'No, there are certain things that must not be done.' And we would take the hit, and the device would go off and the people would be blown up, and we would take some responsibility for that since it is a product of our moral choices. But unless we are prepared to say that we recognize no standards and that there are no limits on what we can do, unless we adopt this sort of relativism, then it seems to me we are at the mercy of the arithmetic."
     
      Yoo, however, is clearly guided by the arithmetic. "When it comes to policymaking," he tells me, "I think you have to be a consequentialist. You couldn't make decisions in government if you were anything but," he adds, "because you always have to make trade-offs."
      To this day, Yoo insists that the secret torture memo that he was so instrumental in drafting did not lead to the abuses at Abu Ghraib, which he blames only on low-ranking soldiers. (Since my last interview with Yoo, however, Antonio Taguba, the two-star general, now retired, who led the first investigation into those abuses, has said publicly that he believes high-level Department of Defense officials bear responsibility for what happened.) Yoo also denies that there's any reasonable connection to be made between Abu Ghraib and Guantanamo?despite the findings of at least one military investigation (the Schmidt Report) documenting Abu Ghraib?like abuses at Guantanamo, authorized by the secretary of defense. But most of all, Yoo believes that to deal with the threats posed by al Qaeda and other nonstate actors?threats that probably won't go away anytime soon?Americans will not only have to get used to a stronger executive branch than many would like, but also be willing to compromise their civil liberties from time to time.
      It doesn't make sense to me to try and restrict the power of the president when we're not sure yet what the future threats are," he says. "I think the government has so far been successful at stopping another 9/11. And I think that at least in part we've been successful because of the president's expanded powers."
     
      From the Torture Memo
     
      "Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death." [Within the document, this definition of torture is used a total of four times.]
     
      "For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g. lasting for months or even years."
     
      "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 [Against Torture] provides in case of torture."
     
      "Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President's constitutional power to conduct a military campaign."
     
      "Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
     
      "We believe that a defense of necessity could be raised, under the current circumstances, to an allegation of a Section 2340A violation."
     
      "[I]f Congress explicitly has made clear that violation of a statute cannot be outweighed by the harm avoided, courts cannot recognize the necessity defense. LaFave and Israel provide as an example an abortion statute that made clear that abortions even to save the life of the mother would still be a crime; in such cases the necessity defense would be unavailable. Here, however, Congress has not explicitly made a determination of values vis-ã-vis torture."
     
      Martin Lasden is the editor of California Lawyer.
     
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Megan Kinneyn

Daily Journal Staff Writer

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