Chapman Law Review
Lincoln’s Constitutionalism in Time of War: Lessons for the War on Terror?
Panel 3: Civil Liberties for Civil Rights: Justifying Wartime Decline of Civil Liberties by a Gain of Civil Rights
WATERBOARDING AND THE LEGACY OF THE BYBEE-YOO “TORTURE AND POWER” MEMORANDUM: REFLECTIONS FROM A TEMPORARY YOO COLLEAGUE AND ERSTWHILE BUSH ADMINISTRATION APOLOGIST
Copyright (c) 2009 Chapman Law Review; M. Katherine B. Darmer
It is commonly said that we are a nation of laws, not men. And we are. But beyond the laws, we are also a nation of men and women with a common ethic. Some things are not American. Torture, for damned sure, is one of them.
This essay argues that waterboarding is torture and that torture is illegal and wrong. It strikes me as unfortunate that these are really debatable propositions in 2009, but we know all too well that our country has engaged in waterboarding and that prominent academics and lawyers continue to defend such tactics today.
When I first read the August 1, 2002 Department of Justice Memorandum by Jay Bybee and John Yoo regarding torture, my reaction was one that occurs “[t]oo often in the academy.” We “talk in muted voices, hushed, pseudo-intellectual whispers, unsure whether we should take a stand . . . .” Despite my initial reticence, the memorandum was roundly, almost uniformly condemned in the academic community. While I did join the choir of condemners, my voice was not among the early, courageous voices of criticism.
Perhaps I was over-awed by the credentials of those who produced the memorandum and felt enduring ties of loyalty to a Justice Department I had only recently left. Perhaps I noted that, beyond the memorandum’s authors, there were other serious lawyers and academics who defended the Administration as taking prudent, defensive measures. Having lived and worked in Manhattan, I was deeply affected by the tragedy of September 11 and was reluctant, even within the academy and far removed from real-world decision making, to be “on record” opposing any legitimate tactic that might make us safer. I failed to appreciate that what the Memo was defending were tactics like waterboarding. I was not yet willing to believe that the Justice Department–in which I had substantial faith–was actually defending torture. Rather, I noted the Administration’s disavowal of the Memo, assumed the Memo was not broadly representative of Administration views, and accepted the explanation that Abu Ghraib was perpetrated by a “few bad apples.” I was unwilling to accept the notion that the Memo reflected and sought to justify a “torture culture.” The term “waterboarding” was not yet in the popular lexicon.
In the immediate aftermath of the attacks, moreover, I was fully supportive of what appeared to be appropriate law enforcement responses. I was impressed with President Bush’s declaration that hate crimes against Muslims would not be tolerated and by his Administration’s swift move against the perpetrators of hate crimes. Aggressive use of material witness warrants and other temporary detentions struck me as prudent.
As time went on, however, unease set in, and then alarm. Those of Middle Eastern descent were targeted for questioning. Detentions at Guantanamo continued, with minimal process for detainees. Even more troubling, it became plain that tactics such as waterboarding had been used by our country in interrogating suspects. Those who had read the August 1, 2002 Memo with a more jaundiced view than I had were already on record with dire warnings regarding the Memo’s implications. Their concerns were realized.
This short essay, thus, is largely simply an acknowledgment of the important role played in this debate by voices more forceful and prescient than my own. Because the August 1, 2002 Memo and related memoranda have been so thoroughly and effectively addressed by others, I will draw heavily on that work to address the question whether waterboarding is torture and then turn to a January 29, 2009 Wall Street Journal op-ed published by Professor John Yoo on the eve of this symposium.
Professor Yoo himself has defended waterboarding quite recently. In his January 29, 2009 op-ed, for example, Yoo decried the Obama Administration’s decision to terminate the CIA’s “special authority to interrogate terrorists” and suggested that “coercive interrogation methods,” including waterboarding, were appropriately used in the prior Administration. In light of this continued debate, I believe it is important to acknowledge the extensive and thorough extant criticism of Yoo’s role in developing a “torture culture” during the War on Terror.
This paper is an outgrowth of my Symposium presentation on a panel entitled Civil Liberties for Civil Rights: Justifying Wartime Decline of Civil Liberties by a Gain of Civil Rights, a title that reflects some ambiguity. In the context of this symposium addressing wartime, however, it strikes me that those who framed this discussion had in mind that we have given up certain freedoms in order to gain more safety. Indeed, Yoo himself subscribes to this view, rejecting as “naïve” and “high-flying rhetoric” President Obama’s inaugural speech statement “that we can ‘reject as false the choice between our safety and our ideals.”’ This essay subscribes to our new president’s vision, however, that holding certain ideals as sacrosanct can be done consistent with making us safer, particularly in the long run. While some minor inconveniences such as longer lines at airports and greater scrutiny of luggage may have made us marginally safer, the fundamental transgressions of civil liberties that are the topic of this particular paper have not, I submit, made us more secure. Instead, they have resulted in a “plunge from the moral heights” with no demonstrable increase in our safety. Indeed, torture arguably makes us less safe because it makes it more likely that our own troops will be tortured in return and also inflames anti-American sentiment. Perhaps more important, even if waterboarding has made us safer, it is an abandonment of core principles to engage in it and thus we should reject it categorically, Yoo’s past and current arguments notwithstanding.
I. The Bybee-Yoo Torture and Power Memorandum
The August 1, 2002 memorandum, prepared for Alberto R. Gonzalez, counsel to the President, was prepared by the United States Department of Justice Office of Legal Counsel (“OLC”) and signed by Jay S. Bybee, then Assistant Attorney General and now a Ninth Circuit judge. John Yoo, a professor of law at Berkeley who served in the OLC when the memorandum was prepared, drafted and defended the memo, which is sometimes referred to as the “Yoo Memorandum,” sometimes as the “Bybee Memorandum,” and sometimes as the “Torture Memorandum.” Because Yoo is widely acknowledged as the primary author but Bybee, who was Yoo’s superior, actually signed the memo and bears ultimate responsibility for its contents, I believe it more appropriate to refer to the memorandum as the “Bybee-Yoo Memorandum.” Moreover, the memorandum is as astonishing for its arrogation of virtually unlimited executive powers as it is for its narrowly circumscribed definition of “torture,” and so I will refer to the memorandum as the “Bybee-Yoo Torture and Power Memorandum,” or BYTAP Memo.
Two provisions of the BYTAP Memo have come under the most sustained attack: (1) the narrow definition of “torture,” which evidence suggests was solicited in order to justify waterboarding tactics the Administration was already using when the Memo was written; and (2) the claim of unlimited executive power to engage in any tactic, including torture.
With regard to the narrow definition, the BYTAP Memo starts with the statutory prohibition on torture, which forbids the infliction of “severe physical or mental pain or suffering.” The full definition of “torture” is as follows:
“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;
“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from —
the intentional infliction or threatened infliction of severe physical pain or suffering;
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;
the threat of imminent death; or
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 BYTAP Memo then borrows from language contained in a statute addressing medical care and concludes that those statutes suggest that “severe pain” as used in the anti-torture statute “must rise to a similarly high level–the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of bodily functions–in order to constitute torture.”
But even this narrowed definition would not limit the President, according to the BYTAP Memo. Rather, “[i]n order to respect the President’s inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander in Chief authority.” In other words, despite the constitutional command that the executive branch execute the laws (including those categorically forbidding torture), the BYTAP Memo concludes that, simply by invoking the term “Commander in Chief,” the president could authorize any interrogation technique, including torture. In short, the BYTAP Memo permitted the conclusion that waterboarding isn’t torture, but even if it is, the President can do it. He can do anything.
The BYTAP Memo has been harshly criticized for, among other things, failing to construe the torture ban in a way that would avoid conflict with international law, using an unrelated medical statute in order to reach a narrow definition of “severe pain,” failing to recognize that the statutory ban on torture does not admit of exceptions, and asserting the view that the President has a “blank check,” despite the fact that such a position “is against the great weight of precedent.” The BYTAP Memo has also been criticized for starting from the premise that international and domestic laws wrongly frustrate the ability of United States officials to act with flexibility, while ignoring long-term consequences of acting unilaterally. The BYTAP Memo is premised on “the epic assertions of executive power proclaimed by Yoo.”
The conservative Jack Goldsmith, who succeeded Yoo at OLC, found that Yoo’s memoranda were not only one-sided but contrary to law. “The idea that Congress could not oversee the interrogation of detainees . . . ‘has no foundation in prior OLC opinions, judicial decisions, or in any other source of law.”’ The BYTAP Memo does not acknowledge the President’s constitutional obligation to take care that the laws are “faithfully executed,” nor does it acknowledge Congress’s delegated powers to make rules and regulations for the conduct of the armed forces and for “captures.”
Dean Harold H. Koh of the Yale Law School has described the August 1, 2002 BYTAP Memo as “perhaps the most clearly erroneous legal opinion I have ever read.” Yet the BYTAP Memo has “proved to be enormously influential.” Although the Justice Department formally withdrew the BYTAP memo shortly after it was leaked, the Administration adhered to many of its premises even while issuing a new memorandum (the “Levin Memo”) that embraced the unequivocal rhetoric that “torture is abhorrent.” As Professor Margulies points out, “Levin deserves substantial credit for clear and resonant language that accurately represented the consensus on this issue. If one reads the [Levin] memo more carefully, however, loopholes appear, justifying what the Administration had already done.” One of the tactics the Administration sought to justify was waterboarding.
II. Waterboarding and Torture
The United States admits to having “waterboarded” suspects under the auspices of the CIA and continued to claim the authority to use the technique as recently as 2005. The BYTAP memo’s narrow definition of torture may well have been designed to allow for this particular procedure.
Professor Jeremy Waldron’s article, Torture and Positive Law: Jurisprudence for the White House is a powerful indictment of the BYTAP Memo and other lawyerly efforts to justify coercive interrogation techniques in the wake of September 11. Waldron disagrees with the argument that we should be more sympathetic to the use of torture in circumstances presented after 9/11. Rather, “the various municipal and international law prohibitions on torture are set up precisely to address the circumstances where torture is likely to be most tempting. If the prohibitions do no hold fast in these circumstances, then they are of little use in any circumstance.” In his view, the torture prohibition “operates in our law as an archetype–that is, as a rule which has significance not just in and of itself, but also as the embodiment of a pervasive principle.” This principle was violated by the use of waterboarding.
The history of water torture has been thoroughly laid out in a recent article by Evan Wallach, a judge on the United States Court of International Trade. Judge Wallach traces the use of the technique throughout history, including by the Japanese against Allied prisoners of war in World War II, by the United States during its occupation of the Philippines and in one instance, domestically, by a sheriff in Texas. “In all cases, whether the water treatment was applied by Americans or to Americans, or simply reviewed by American courts, it has uniformly been rejected as illegal, often with severely punitive results for the perpetrators.”
Judge Wallach recounts the description provided by a United States aviator subjected to the practice by Japanese captors:
I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I’d get my breath, then they’d start over again.
Similarly, in the Texas case, law enforcement officers were charged with “handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions.” The sheriff was convicted and received a ten-year prison sentence; other defendants also received significant prison sentences. At sentencing, the judge noted that the Texas law enforcement operation would embarrass even a “dictator.”
Wallach noted that the “water torture” or “water boarding” technique has long been prized as an interrogation method because it imposes “severe mental trauma and physical pain but no traces of physical trauma that would be discoverable without an autopsy.”
During the height of the debate about waterboarding as used by the United States against terrorist suspects, the journalist Christopher Hitchens chose to voluntarily undergo the experience. As he describes it: “I was pushed onto a sloping board and positioned with my head lower than my heart . . . . Then my legs were lashed together so that the board and I were one single trussed unit.” Hitchens was already wearing a hood, and three layers of “enveloping towel” were applied. Then,
In this pregnant darkness, head downward, I waited for a while until I abruptly felt a slow cascade of water going up my nose. Determined to resist . . . I held my breath for a while and then had to exhale and–as you might expect– inhale in turn. The inhalation brought the damp cloths tight against my nostrils, as if a huge wet paw had been suddenly and annihilatingly clamped over my face. Unable to determine whether I was breathing in or out, and flooded more with sheer panic than with mere water, I triggered the pre-arranged signal and felt the unbelievable relief of being pulled upright and having the soaking and stifling layers pulled off me.
After being checked by a paramedic and taking a break, Hitchens endured a second episode:
I fought down the first, and some of the second, wave of nausea and terror but soon found that I was an abject prisoner of my gag reflex. The interrogators would hardly have had time to ask me any questions and I would quite readily have agreed to supply any answer.
Hitchens took strong issue with the “official lie” that waterboarding “‘simulates’ the feeling of drowning.” In his words, “You feel that you are drowning because you are drowning–or, rather, being drowned, albeit slowly and under controlled conditions and at the mercy (or otherwise) of those who are applying the pressure.” Even after the ordeal, Hitchens has experienced feelings of panic upon awakening or in circumstances where he is short of breath. He concludes that “if waterboarding does not constitute torture, then there is no such thing as torture.”
A majority of Americans share Hitchens’ view that waterboarding constitutes torture. Judge Wallach, too, concludes that waterboarding is torture even under the narrow BYTAP Memo definition. However, the fact that the BYTAP Memo seems to have been designed to exclude tactics such as waterboarding from the definition of torture illustrates BYTAP’s biggest problem. Surely waterboarding, under any reasonable definition of torture, is torture.
Torture is illegal, and given our country’s (historic) moral stature, we have a “special responsibility” to enforce the prohibition, as noted by the journalist Eyal Press. We lead by example, and, without condemning torture ourselves, we cannot expect others to do so. That condemnation must be more than rhetorical. Insisting that the United States does not torture is empty rhetoric if we make the claim while inflicting waterboarding on suspects.
Equivocating on torture not only causes us to lose moral standing on the international stage but also places our own soldiers at risk. As Professor Philip B. Heymann points out, if we approve torture in particular circumstances, other countries will do the same. It was that concern that led us to accept Geneva Convention prohibitions on torture, despite the cost of obtaining information that “might save dozens of American lives.”
III. Yoo’s Recent Op-Ed
Yoo continues to view the Geneva Convention restrictions and other limits on the president’s use of coercive techniques as wrong-headed and dangerous. In his recent op-ed, Yoo laments that President Obama will likely “declare terrorists to be prisoners of war under the Geneva Convention,” whereas the Bush Administration classified terrorists “like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.”
Alan Clarke argues that the demonization of an enemy, and the claim that some people are just “outside of the law,” are elements of the creation of a torture culture. “We inhabit a world of ‘us’ against ‘the evil doers’ which permits a torture culture to take hold. Al-Qaeda becomes equated with pirates and slave traders to be dealt with or extirpated at will.” And as Eyal Press argues, torture is “a function not of brute sadism but of the willingness to view one’s enemies as something less than human.”
Moreover, while some of those classified as “enemy combatants” have in fact been terrorists, others have not been. In demonizing the enemy and acting as though we are justified in treating such a class of persons as “outside the law,” we run the grave risk that innocents will be victims, as they have been in the past. As Clarke points out, “[e]xperts estimate that eighty percent of people tortured by our forces and our South Vietnamese allies during the Vietnam War were wholly innocent people who were in the wrong place at the wrong time.”
Once started, torture and other abusive practices spread. Their logic cannot be easily contained. If it is right to torture in the extreme situation, what about a slightly less extreme case? . . . In every case, harsh practices can be justified on the ground that the person being questioned may harbor information that could save innocent lives.
Relying on history and behavioral science studies, Clarke also points out that torture is a “true slippery slope.” Most of us are capable of torture and, “in the absence of enforced prevention rules, systemic abuses become prevalent.”
Even after Abu Ghraib and revelations about the extent to which waterboarding was used, Yoo acknowledges no such risk of systemic abuse, focusing instead only on the risk attendant to foregoing harsh interrogation tactics. With regard to waterboarding specifically, Professor Yoo adheres steadfastly to the view that it is a legitimate practice, acknowledging that President Bush authorized the practice three times and suggesting that President Obama acted precipitously and foolishly in terminating the CIA’s “special authority to interrogate terrorists.” Yet even before Obama’s inauguration, the Department of Justice OLC had “conceded that waterboarding [was] no longer legal” after the passage of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, albeit still claiming that the president could authorize waterboarding and other such techniques “in special circumstances.” In eschewing any authority for such practices, the new president is doing nothing more than agreeing to follow the law.
President Obama is also reclaiming some of the moral high ground lost when it was revealed that the United States had engaged in torture. While Yoo predicts that “Mr. Obama may have opened the door to further terrorist acts on U.S. soil by shattering some of the nation’s most critical defenses,” we can hope that he has instead begun the laborious process of reclaiming the country’s moral standing on the international stage. As Washington Post columnist Richard Cohen wrote five years ago in response to the BYTAP Memo:
The Bush administration constantly reminds us that there’s a war on. That’s wrong. There are two. One is being fought by soldiers in combat, and the other is being fought for the hearts and minds of people who are not yet our enemies. However badly the administration has botched the first war . . . it has done even worse with the second. It has jutted its chin to the world, appeared pugnacious and unilateralist, permitted the abuse of POWs and others at Abu Ghraib, and now toyed in some fashion with torture. The Bush administration has shamed us all, reducing us to the level of those governments that also have wonderful laws forbidding torture, but condone it anyway.
It is notable that Yoo’s opinion piece adhering to the view that waterboarding is an indispensable tool in the War on Terror was written more than eight years after the tragic events of 9/11; it was not written under the same pressures that Yoo and others faced when they first advocated a narrow definition of “torture” when advising the Administration. In other words, even after considerable reflection and presumably after considering the virtual cottage industry that has developed to criticize Yoo’s wartime memos, Yoo remains strident in defense of his first instincts.
Fortunately, the majority of academics and lawyers acted quickly and decisively to illustrate the dangers of instincts that would act to grab power and inflict torture in the name of making us safer. Not only was the BYTAP Memo formally withdrawn by the Justice Department, but it has been thoroughly deconstructed and criticized by an army of academics.
In the opening quote of his piece, In Torture We Trust?, Eyal Press quotes from John-Paul Sartre: “If patriotism has to precipitate us into dishonour, if there is no precipice of inhumanity over which nations and men will not throw themselves, then, why in fact do we go to so much trouble to become, or to remain, human?” Indeed.