Another Bush administration legal fiction
unbossed.com
by smintheus
August 24, 2009

The ACLU finally has managed to force the Obama administration to release a less severely redacted version of the May 2004 report on the CIA’s abusive treatment of terrorist suspects (PDF). The report was done by the CIA’s Inspector General, John Helgerson, and (to judge by what remains unredacted) seems to be fairly critical of those abuses and of their legal underpinnings. There’s plenty to say about the contents of this report – for example, the bizarre tortures it catalogues (summarized here).

One thing stood out in the early pages of the document: Bush administration lawyers wrote an undated memo sometime before June 16, 2003 which among other things advanced a no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances of the UN Convention against Torture.

That memo, "Legal Principles Applicable to CIA Detention and Interrogation of Captured Al Qa’ida Personnel", does not appear to be publicly available yet [it is now available]. It was drafted by lawyers at the Justice Department’s Office of Legal Counsel (almost certainly John Yoo) and then finalized by the CIA Office of General Counsel. Here is what the Helgerson report states the memo said about the UN Convention:

The analysis adds that "the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war."

• torture versus "cruel, inhuman, or degrading treatment"
• normal circumstances versus "exigent circumstances, such as a national emergency or war."

The UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment says no such thing. The OLC/OGC lawyers evidently were insinuating that the Convention drew a very major distinction between the prohibitions against torture on the one hand, and against cruel, inhuman, or degrading treatment on the other. Article 2 of the Convention states explicitly that there are no circumstances that may be used to justify torture:

No 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.

It is true that the Convention does not repeat the Article 2 statement when it later discusses "cruel, inhuman, or degrading treatment". However that discussion (in Article 16) is extremely brief and to the point: that governments should prevent ‘cruel etc. treatment’ as they do torture and should give its victims the same legal recourse as victims of torture. There is no implication whatsoever in the Convention that "exigent circumstances" permit the use of cruel, inhuman, or degrading treatment.

Indeed, the US wrote the following to the UN Committee against Torture ten years ago regarding its implementation of the Convention (Report of the United States to the UN Committee against Torture, October 15, 1999, UN Doc. CAT/C/28/Add.5, February 9, 2000, para. 6):

No exceptional circumstances may be invoked as a justification of torture. US law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.

So, when do the torture memos written by John Yoo and friends rise beyond the level of bad lawyering and into the much shadier territory of deliberate falsification for the purpose of facilitating, enabling, or encouraging torture? Because at that point I’d think even the timid Eric Holder’s Justice Department would be forced to prosecute them.

• No exceptional circumstances may be invoked as a justification of torture. 
• no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances

The behavior of our government after the 9/11 attack on New York was insane. While we might well be forgiving about a lot of it, two things won’t go away. First, we tortured prisoners of war even though we had clear laws forbidding torture. The second was invading a soverign country with no credible Casss Belli [case for war].

What now? How do we deal with what happened? This document, Legal Principles Applicable to CIA Detention and Interrogation of Captured Al Qa’ida Personnel, was written by the counsels at the CIA in consultation with John Yoo, Deputy Attorney General in the Office of Legal Counsel of the Department of Justice. It was treated as an official legal opinion from that office, though no one except Yoo ever saw it. When it was seen at the DoJ it was immediately and repeatedly disavowed as representing an OLC opinion. And, as smintheus points out, it was a flagrantly false legal argument, deliberately misquoting our law and passed off as an official opinion [which it was not].

Prosecute!