Shandean Postscripts to Politics, Philosophy, & Culture

Many years ago, Prof. Randy E. Barnett suggested to me that in my book on jury nullification I missed one of the reasons late nineteenth century juries lost the legally recognized role of deciding both facts and law. The reasons I had given were the diversification of the jury (which had come to include blacks, women, poor whites, and new immigrants), and the fact that elites could control legislatures but not juries. Barnett saw another factor at play: the rise of legal formalism during that same period, supplanting the natural rights doctrine that gave rise to the jury's larger role.

The United Nations Convention Against Torture and U.S. law both have a blanket prohibition against torturing anyone either within the territorial boundaries of the U.S. or abroad. These laws also prohibit the U.S. government from extraditing non-nationals to third countries where there are “substantial grounds for believing” that they would be tortured. The imprecision of this clause, however, appears to have allowed for a fair amount of latitude, according to lawyers whom I interviewed for this piece. For instance, Martin Lederman, a former lawyer with the Justice Department's Office of Legal Counsel—who did not deal with the cases while he was in office but has studied them since—suggested that what looks at first like a complete prohibition actually is not. The legal standard allows U.S. officials to argue that they didn't know with any certainty that a suspect would be tortured, and so can't be held liable. U.S. officials have in fact often sought what is known as "assurances" from countries to which they have rendered suspects that the suspects would not be tortured. Even if these assurances are just a wink and a nod, they may provide legal cover. Finally, some lawyers believe that the U.S. may be finding protection by never formally taking legal custody of suspects it renders abroad—even if, for instance, the U.S. government transports such suspects. Such details are difficult to find out about, however, because the program is secret. You write about the case of Mamdouh Habib. From The New Yorker Online Torture by Proxy An Interview with Jane Mayer.

What's most striking about these torture memos is their ideological consistency. Almost from the outset the principal ideas were set—that the Geneva Conventions might not apply to some prisoners; that torture could be defined narrowly so as to permit egregious conduct as long as the "intent" was not to violate the law; that conduct prohibited under national and international law could be redefined as permissible. The Legal Memos (Note the relevant memos can be read in full at this site. For a detailed legal analysis of the torture memos see the weblog of Michael Froomkin, Professor at the University of Miami School of Law: Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo))

In a recent phone interview, Yoo was soft-spoken and resolute. “Why is it so hard for people to understand that there is a category of behavior not covered by the legal system?” he said. “What were pirates? They weren’t fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for their trial, or imprisonment. If you were an illegal combatant, you didn’t deserve the protection of the laws of war.” Yoo cited precedents for his position. “The Lincoln assassins were treated this way, too,” he said. “They were tried in a military court, and executed.” The point, he said, was that the Geneva Conventions’ “simple binary classification of civilian or soldier isn’t accurate.”

Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation’s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn’t have the power to “tie the President’s hands in regard to torture as an interrogation technique.” He continued, “It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.”

The administration's initial response was to say that the president was shocked and disgusted by the photographs -- as if the fault or horror lay in the images, not in what they depict. There was also the avoidance of the word ''torture.'' The prisoners had possibly been the objects of ''abuse,'' eventually of ''humiliation'' -- that was the most to be admitted. ''My impression is that what has been charged thus far is abuse, which I believe technically is different from torture,'' Secretary of Defense Donald Rumsfeld said at a press conference. ''And therefore I'm not going to address the 'torture' word.' '....

Whatever actions this administration undertakes to limit the damage of the widening revelations of the torture of prisoners in Abu Ghraib and elsewhere -- trials, courts-martial, dishonorable discharges, resignation of senior military figures and responsible administration officials and substantial compensation to the victims -- it is probable that the ''torture'' word will continue to be banned. To acknowledge that Americans torture their prisoners would contradict everything this administration has invited the public to believe about the virtue of American intentions and America's right, flowing from that virtue, to undertake unilateral action on the world stage.
Susan Sontag, Regarding the Torture of Others

the US government has gone to great lengths to restrict the application of the Geneva Conventions and to “re-define” torture. It has sought to justify the use of coercive interrogation techniques, the practice of holding “ghost detainees” (people in unacknowledged incommunicado detention) and the "rendering" or handing over of prisoners to third countries known to practise torture. The detention facility at Guantánamo Bay has become the gulag of our times, entrenching the practice of arbitrary and indefinite detention in violation of international law. Trials by military commissions have made a mockery of justice and due process.

The USA, as the unrivalled political, military and economic hyper-power, sets the tone for governmental behaviour worldwide. When the most powerful country in the world thumbs its nose at the rule of law and human rights, it grants a licence to others to commit abuse with impunity and audacity. From Israel to Uzbekistan, Egypt to Nepal, governments have openly defied human rights and international humanitarian law in the name of national security and “counter-terrorism”.

The most common destinations for rendered suspects are Egypt, Morocco, Syria, and Jordan, all of which have been cited for human-rights violations by the State Department, and are known to torture suspects. To justify sending detainees to these countries, the Administration appears to be relying on a very fine reading of an imprecise clause in the United Nations Convention Against Torture (which the U.S. ratified in 1994), requiring “substantial grounds for believing” that a detainee will be tortured abroad. Martin Lederman, a lawyer who left the Justice Department’s Office of Legal Counsel in 2002, after eight years, says, “The Convention only applies when you know a suspect is more likely than not to be tortured, but what if you kind of know? That’s not enough. So there are ways to get around it.”
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The Bush Administration’s departure from international norms has been justified in intellectual terms by élite lawyers like Gonzales, who is a graduate of Harvard Law School. Gonzales, the new Attorney General, argued during his confirmation proceedings that the U.N. Convention Against Torture’s ban on “cruel, inhuman, and degrading treatment” of terrorist suspects does not apply to American interrogations of foreigners overseas.
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The Bush Administration’s redefinition of the standards of interrogation took place almost entirely out of public view. One of the first officials to offer hints of the shift in approach was Cofer Black, who was then in charge of counter-terrorism at the C.I.A. On September 26, 2002, he addressed the House and Senate Intelligence Committees, and stated that the arrest and detention of terrorists was “a very highly classified area.” He added, “All you need to know is that there was a ‘before 9/11’ and there was an ‘after 9/11.’ After 9/11, the gloves came off.”

Laying the foundation for this shift was a now famous set of internal legal memos—some were leaked, others were made public by groups such as the N.Y.U. Center for Law and National Security. Most of these documents were generated by a small, hawkish group of politically appointed lawyers in the Justice Department’s Office of Legal Counsel and in the office of Alberto Gonzales, the White House counsel. Chief among the authors was John C. Yoo, the deputy assistant attorney general at the time. (A Yale Law School graduate and a former clerk to Justice Clarence Thomas, Yoo now teaches law at Berkeley.)
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Soon after September 11th, Yoo and other Administration lawyers began advising President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the war on terror. The lawyers classified these detainees not as civilians or prisoners of war—two categories of individuals protected by the Conventions—but as “illegal enemy combatants.” The rubric included not only Al Qaeda members and supporters but the entire Taliban, because, Yoo and other lawyers argued, the country was a “failed state.” Eric Lewis, an expert in international law who represents several Guantánamo detainees, said, “The Administration’s lawyers created a third category and cast them outside the law.”
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The legal pronouncements from Washington about the status of detainees were painstakingly constructed to include numerous loopholes. For example, in February, 2002, President Bush issued a written directive stating that, even though he had determined that the Geneva Conventions did not apply to the war on terror, all detainees should be treated “humanely.” A close reading of the directive, however, revealed that it referred only to military interrogators—not to C.I.A. officials. This exemption allowed the C.I.A. to continue using interrogation methods, including rendition, that stopped just short of torture. Further, an August, 2002, memo written largely by Yoo but signed by Assistant Attorney General Jay S. Bybee argued that torture required the intent to inflict suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” According to the Times, a secret memo issued by Administration lawyers authorized the C.I.A. to use novel interrogation methods—including “water-boarding,” in which a suspect is bound and immersed in water until he nearly drowns.