Blogs > HNN > An Open Letter to John Yoo

Apr 18, 2005 3:35 pm


An Open Letter to John Yoo



Dear Professor Yoo,

First, I want to thank you for coming to speak and debate at UCI. I opposed your visit as a Chancellor's Distinguished Fellow on the assumption that such an honor should not be bestowed on former government officials whose main claim to distinction is redefining torture almost out of existence and sanctioning the use of cruel, inhuman and degrading punishment by the CIA as long as its on foreigners outside US borders. But I'm happy we had the chance to discuss our very different views of the policies you helped shape and their impact on America's security at home and standing abroad.

Let me, however, correct a few misconceptions you seem to have had about the debate we had prior to your evening lecture. According to the LA Times story on the event, you felt that you were ganged up upon because the other panelists were clearly antagonistic to your position. In fact, the Executive Vice Chancellor of UCI specifically asked the deans of the schools of humanities, social sciences and social ecology to solicit faculty members to join our panel. For whatever reason the only two faculty members across the campus who would agree to share the stage with you were myself and professor Cecelia Lynch of Political Science. While several politically conservative UCI faculty attended the debate, none accepted the invitation to join it. (We did ask that a professional lawyer with experience in human rights and international law be on the panel given your expertise in this area, and Steve Rohde, former head of the Southern California ACLU was nice enough to join us.) It's impossible to know why, but might I suggest that even most conservatives feel that it's impossible to defend your support for untrammeled (and by almost universal consensus, unconstitutional) presidential power, not to mention waterboarding of detainees who, as admitted by US intelligence officials, if they're at most Iraqi prisons stand upwards of a 90% chance of being innocent civilians?

You also expressed the view that you were not given adequate time to respond to our accusations. But your had 20 minutes to respond, this after 10 minutes to start off the event. Yet instead of answering even one of the numerous accusations against you, you merely described them as unfounded, criticized my"pulling quotes out of context and stringing them together," and focused your comments—which you repeated verbatim in your lecture later that evening—on the argument that since al-Qa'eda and other terrorist groups were non-state actors the Geneva Conventions don't apply to them. That may well be, but this was the one issue that your co-panelists, and especially myself, specifically said did not concern us. As you might remember, the reason we didn't consider this the most important thing about which to debate is because even if your logic is valid and the detainees don't fit post-World War II legal categories, their definitional ambiguity can in no way justify US government-approved abuses and even crimes against them. Does it? (Of course, you might have mentioned that as a signatory to Geneva, the US can't decide to suspend applying its provisions without formally withdrawing from the conventions. And therefore, before detainees are declared unlawful combatants, they would have to be put before a special tribunal where an independent judge would determine their status. This has yet to occur with any detainee in the war on terror).

But these are just the footnotes to my main arguments in the debate, which I'll repeat here in case you don't recall them. Since you said that they were unfounded, I am happy to publish any responses you send to me and let the readers decide, or continue this discussion in whatever forum you'd like.

1. The war on terror is not a fundamentally new kind of war.

According to a June 24, 2004 interview with the NY Times, you believe that"this is an unprecedented conflict with a completely new form of enemy that fights in unconventional ways that violate the very core principles of the laws of war by targeting civilians." But what about the Nazi bombings of London, or allied bombings of Dresden? What about the British bombings o Iraq in 1920—the first use in warfare of massive bombing of civilian areas from the air? What about the hundreds of thousands (or more) Vietnamese and other South Asian civilians killed during the Vietnam war, the majority by US forces? What about the Spanish-American war and the US occupation of the Philippines?

In all these conflicts and many more massive numbers of civilians were deliberately targeted for death in order to further the war aims of the various parties. And of course there's also the trick about"targeting" civilians. of course, the US would never admit to deliberately targeting civilians; yet it somehow has killed upwards of 100,000 of them in Iraq. Do our soldiers have such bad aim? And in Afghanistan the US has killed well over twice the number of civilians as al-Qae'da killed before, during and after September 11, 2001. Or what about America's use of napalm and cluster bombs in both countries, which have undoubtedly killed far more civilians that al-Qa'eda killed on September 11, 2001? Of course, none of this excuses al-Qa'eda's terrorism that happened before, on and after that terrible day, but does it excuse our own massive and systematic violations of the most basic tenets of international law?

You also argue that the war on terror demands"flexibility" by the commanders leading the fight against the global threat of terrorism:"The war on terror is a new kind of war with a high premium on the need to quickly gather info from captured terrorists and their sponsors." Moreover,"this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners… This is a new type of warfare and requires a new approach in our tactics with captured terrorists."

This is the main argument you use to justify the very narrow definition of torture, and the authorization to use" cruel, inhuman and degrading" treatment (CID) on detainees in your (in)famous August 1, 2002 memo (known world-wide as the"torture memo", available online). Am I to understand here that you mean that it wasn't important to gather intelligence quickly before 9/11? Tell that to the French in 1940 as the Germans swung around the Maginot Line, or the US in 1941, or Sun Tzu and Clausewitz, both of whom, roughly 2300 years apart, wrote of the importance of surprise and deception, and therefore the need to detect them by one's opponent, during wartime. And didn't al-Qa'eda need years to plan the 9/11 attacks. I think you need to do a much better job explaining how this war is so new that it demands unprecedented levels of state-sanctioned violence to fight it.

2. The torture and other abuses documented at Abu Ghraib, Guantanamo and other US detention facilities is directly connected to the policies you helped to draft.

You have stated publicly that the photos at Abu Ghraib document torture of the prisoners there. Yet you have also said that the policies you drafted have nothing to do with the practices depicted in those photos or documented from other detention centers.

I beg to differ, and would argue that in fact the policies that you drafted in several memos from September 2001 to August 2002 directly laid the foundation for the abuses that have so shocked the world. And it appears that your former employers at the White House and Justice Department agree, as in the recently released"Levin memo," written by Assistant Attorney General Daniel Levin in December of last year (http://www.washingtonpost.com/wp-dyn/articles/A37687-2004Dec30.html) repudiated almost every attempt you made to define torture more narrowly than had previously been done. This includes your argument that"severe physical pain or suffering" in the torture statue can only include the pain associated with"permanent and serious physical damage that must rise to the level of death, organ failure or the permanent impairment of a significant body function," or that"prolonged mental harm" must lasts months or years to be considered torture, or that—most Orwellian of all—the interrogator must"specifically intend" to inflict severe pain or suffering as his"precise objective." That is, even if he knew his actions would lead to severe pain if his"express purpose" was not to inflict that pain but rather to get information, then it's not torture!

All of these have been repudiated, and rightfully so, yet in our discussion your only response to this was to say that you had no guidance in making your judgments so you took the definition of sever pain and suffering used in emergency rooms (which the Levin Memo concluded was a"very different context" that should not have been used as the basis for your opinion. (Yet in print you continue to argue that your memo cleared up the definitional ambiguities in the Torture Statute, (readers, go here and here to decide for yourselves if there's ambiguity in them) while the new memo"muddied the waters.")

Moreover, it is strange to me that in every aspect of the definition of torture under US and international law, you chose the absolutely narrowest possible definition. Didn't it occur to you that it would better serve American interests—and America's heritage—to adopt a definition of torture that made it harder, not easier to engage in it?

I think the problem here is ultimately one of language and its disconnect in your mind from reality and consequences. Let me explain. Your former boss, President Bush, has argued (and many other administration officials, including AG Gonzalez, repeat the words verbatim:"As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." Of course, here is the huge loophole: if the President or his surbordinates declare that military necessity demands engaging in cruel, inhuman or degrading treatment of detainees, or even torture (as former Deputy AG and now Federal Appeals Court judge Jay Baybee argued), then we can do it—as long as we continue to treat the detainee"humanely," which according to our government means nothing more than providing food, shelter, clothing (when prisoners are not stripped nude) and medical care in between interrogation sessions to ensure the prisoner doesn't do anything so unfortunate as to die on his interrogators.

Granting the President or his senior officials the power to abrogate international treaties that have the force of American law is, of course, central to your enterprise. As you wrote in your September 25, 2001 memorandum, entitled"The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them:"http://www.usdoj.gov/olc/warpowers925.htm."We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad." Now I'm not sure where you went to law school, but I remember learning in 7th grade social studies that it is the Congress, not the President, who has the power to declare war. In fact, if you would go to the Constitution online, at http://www.usconstitution.net/const.html you'll see that Art. 1, Section 8 specifically grants Congress the power to declare war while Art. 2 does not provide a similar power to the President.

Perhaps they didn't teach you this at Yale Law School? Or perhaps you never read the Federalist papers? Or the letters of Madison and Hamilton on this issue? (Madison wrote in a 1792 letter to Thomas Jefferson,"the Executive is the branch of power most interested in war, and most prone to it. It [the Constitution] has accordingly with studied care, vested the question of war in the Legislature." Hamilton, while zealously advocating for a strong Presidency, argued in a 1793 essay:"It is the province and duty of the Executive to preserve to the Nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the Nation in a state of War.")

How then, Professor Yoo, can you argue in your 2001 memo that the President's decisions"are for him alone and are unreviewable?" and that he could therefore deploy military force"pre-emptively" against terror groups or entire countries that harbored them,"whether or not they can be linked to the specific terror incidents of Sept. 11"? Most important, while the heart of the August 2002 memo is an attempt to provide US personnel and especially the President legal cover to authorize the CIA to engage in CID on detainees as long as they're outside the US, you must know that such a policy violates international and US law; specifically Article 7 of the Covenant on Civil and Political Rights—"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment" (http://www1.umn.edu/humanrts/instree/b3ccpr.htm)—which we have signed and ratified, meaning it has the same force of law as any other federal statute. In other words, without exception torture and"Cruel, Inhuman and Degrading" treatment is outlawed anywhere and anytime by anyone against anyone. There are no exceptions for"military necessity" or for CIA personnel stationed overseas and outside the reach of US courts; nor is there a difference between torture and CID. Your attempt at legal hairsplitting, which has done our country so much harm, was doomed to fail because of this (and other reasons, as we'll see below). Were you not aware of this treaty, or did you think no one else was?

Of course, with all the bad publicity it is not surprising that in recent months you have argued that the August 2002 memo was"an abstract analysis of the meaning of a treaty and statute' and critics 'confuse the diff between law and moral choice." Or that your former colleagues at the White House repudiated the memo as"overbroad and irrelevant." But sadly, while overbroad it was, irrelevant it certainly wasn't. Why? Because, as I argued above, it led directly to the worst abuses at Abu Ghraib.

How can I say this. well, let's start by looking at the most famous picture of the whole Abu Ghraib nightmare, the picture of the hooded, crucified and electroded prisoner standing on a box. http://fixco1.com/bushuglyface.html Now you are on record saying Abu Grhaib is torture. You're also on record saying nothing you and the OLC did led to Abu Ghraib. Well, let's ask ourselves: If you authorize, sleep deprivation, standing in stress positions, threats of immanent death, degrading and humiliating behavior and disorientation (all of which are techniques discussed in your memos or those of the Department of the Defense, which were admitted to have been based directly on your memo, as most recently reported by the Washington Post http://www.washingtonpost.com/ac2/wp-dyn/A23373-2004Jun7?language=printer); what do you get when you put them together? You should know, Professor Yoo, since you're on record saying your memo" clarified" US interrogation policies. You get that very sad and sickening picture, don't you? Indeed, that picture is a perfect combination of all these"approved" techniques rolled into one. In fact, according to your memo and the US policy based on it. As long as the detainee in the picture wasn't left in this position until near death or organ failure, what happened could be considered perfectly legal, couldn't it?

We know from several reports that Lt. Gen. Ricardo S. Sanchez, in charge of the Iraq counterinsurgency, sent out several conflicting memos with regard to the treatment of prisoners - memos that only added to the confusion as to what was permitted and what wasn't. When the general in charge of Guantánamo was sent to Abu Ghraib to help intelligence gathering, the ''migration'' of techniques (the term used in the Pentagon's Schlesinger Report) from those reserved for extreme cases in the leadership of Al Qaeda to thousands of Iraqi civilians, most of whom, according to intelligence sources, were innocent of any crime at all, was complete. Specfically, the Fay Report on Intelligence Gathering at Abu Ghraib http://news.findlaw.com/hdocs/docs/dod/fay82504rpt.pdf explained that"The events at Abu Ghraib cannot be understood in a vacuum… Confusion about what interrogation techniques were authorized resulted from the proliferation of guidance and information from other theaters of operation." Indeed, the Fay, Jones and Schlesinger reports all conclude that the confusing memos from Washington (among which your was central) helped lead to a situation where, according to Fay, by December 2002,"interrogators in Afghanistan were removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation…The use of clothing as an incentive (nudity) is significant in that it likely contributed to an escalating 'de-humanisation' of detainees and set the stage for additional and more severe abuses to occur." Needless to say, by November that year, the Red Cross was reporting that interrogation techniques in both Guantanamo and Iraq had shifted from harsh to becoming"tantamount to torture."http://www.commondreams.org/headlines04/1130-01.htm As you might be aware, the dictionary definition of tantamount is that it is"equivalent in effect or value."

Most disconcertingly, as Newsweek reported about your work,"Yoo's August 2002 memo was prompted by CIA questions about what to do with a top Qaeda captive, Abu Zubaydah, who had turned uncooperative. And it was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and David Addington, Vice President Dick Cheney's counsel, who discussed specific interrogation techniques, says a source familiar with the discussions. Among the methods they found acceptable:"water-boarding," or dripping water into a wet cloth over a suspect's face, which can feel like drowning; and threatening to bring in more-brutal interrogators from other nations. The agency, say senior intelligence officials, made sure it had explicit, written authorization from lawyers and senior policymakers before using new interrogation techniques."http://msnbc.msn.com/id/5197853/site/newsweek/

Put simply, the evidence is overwhelming that your memos, along with Jay Bybee's of August 1, 2002, led to the abuses that have so sicked the world. They clearly figure prominently in the Defense Department’s Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (April 4, 2003) (“Working Group Report”). Many paragraphs are even excerpted word for word. The Working Group Report in turn supported the actual policy implemented by the Defense Department at Guantanamo Bay on April 16, 2003 in the DOD Memorandum for the Commander, US Southern Command: Counter-Resistance Techniques in the War on Terrorism. As I already mentioned, the Red Cross reportedly informed the U.S. Government, including White House lawyers, that the interrogation techniques employed at Guantanamo Bay constitute"an intentional system of cruel, unusual and degrading treatment and a form of torture."

3. Waterboarding is most certainly torture.

In a LA Times article of January 23, 2005, Sec. of State Rice refused to answer a question of whether"waterboarding"—basically holding someone under water until they are ¾ drowned to get them to answer questions, is torture."I'm not going to speak to any specific interrogation techniques," Rice said, adding that it was up to the Justice Department to define torture. You, Professor Yoo, were more forthright in the same article:"What the administration is saying is we're not going to torture people… What the administration does not want to say, and I think for good reasons too, is what methods the United States might or might not use short of torture." Well, isn't this reassuring. Except that the whole point is who defines what is"short of torture." And that's the Attorney General and President!

So if someone, say you, thinks waterboarding isn't torture and Bush and Gonzalez agree, then we can waterboard as much as we want without fear of legal repurcussions or challenges to the practice, no? You further explained regarding when waterboarding is or isn't torture:"It depends on the circumstances." Yet you also claimed that sleep deprivation for five days would be torture. But haven't doctors have shown that people can go weeks without sleep without any long term damage to the body? (I haven't slept for four weeks since my daughter was born, and I certainly didn't sleep more than a few hours a day for the entire time I was in Iraq.)

Can the same be said about repeated waterboarding? In fact, at our debate I asked you several questions which you didn't answer then, but which I very much hope you'll answer now so we can understand how you came to the decision that waterboarding isn't torture:

1. Have you ever waterboarded anyone?
2. Have you ever been waterboarded by anyone?
3. Have you ever watched someone being waterboarded?

I asked you these questions not to grandstand or shock the audience or even make you uncomfortable; but rather because I don't understand how you could imagine that waterboarding isn't torture unless you had some personal experience with the technique. Can you explain how you arrived at this opinion? I must confess I'm not sure I believe that you really feel that waterboarding in the real world (as opposed to training courses for intelligence and special forces personnel) doesn't have to be torture. After all, I invited you to take me into the bathroom with several witnesses and demonstrate how it could be done without being considered torture. Considering the criticism you've come under for your views, I would have assumed you'd have jumped at the chance to prove to a critic that the technique can have no long term impact. Nor were you willing to take me up on my offer and come with me to Iraq and meet some of the people who've been waterboarded by American personnel and explain your rationale to them. Both offers still stand if you change your mind.

Let me fill you in about waterboarding in case you don't know. Americans were the first to use it for interrogation in the 20th century, during the Spanish-American War against Filipinos. There was also a famous Nazi officer who was a specialist in water tortures, especially waterboarding. Dr. Ramdohr was his name, and he was a major figure at Ravensbruck concentration camp, the camp for women. His signature technique was described by Lord Russell (Scourge of the Swastika, 203) as this:"Ramdohr carried out the cruelest physical and mental torture....He also used to tied prisoners' hands behind their backs and make them lie on their stomachs on a table in such a way that their heads protruded over the end of the table where he had placed a chair on which there was a bowl of water; he then gripped the women by the hair and pushed their faces into the water." Ramdohr was tried by a British Military Court Martial at Hamburg in the British Occupation Zone that sat from May 12, 1946 to March 2, 1947 and sentenced to death by hanging.

4. Torture and Cruel, Inhuman and Degrading Interrogation Methods Don't Work.

As I explained in No. 1, in our debate and in your writings you have argued that the unprecedented nature of the war on terrorism demands the fastest possible gathering of accurate intelligence. This necessity in turn provides the justification for expanding the list of permitted methods of interrogation to those which are admittedly"CID," and in some cases, torture. Alan Dershowitz has of course argued much the same thing, calling for torture itself to be legalized (although by the definition of torture you came up with, I'm not sure sticking hypodermic needles under peoples' fingernails—which Dershowitz describes as his favoured method of extremee interrogation—would qualify as torture),

Both of your rationales for justifying such treatment revolve around a utilitarian argument based on a cost benefits analysis that asks whether the harm done to a (let us remember, a quite possibly innocent) detainee from the interrogation is equal to or greater to the potential harm that would occur if a terrorist attack, especially one involving, WMD, occurred. Among the many problems of this logic—and see Jack Rabbit's"Why Torture Doesn't Work: A Critique of Alan Dershowitz' Case for Torture"http://www.democraticunderground.com/articles/04/03/11_torture.html for a thorough critique of Dershowitz's argument—the most important is that there is little if any evidence that torture reliably produces accurate and timely intelligence information. In fact, the Army Field Manual 34-52 states,"Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear." Moreover, the use of coercive techniques, one authorized on even a few detainees, always becomes widespread. As Douglas Johnson, of the Centre for Victims of Torture, explains,"Torture has always been justified by reference to a small number of people who know about the 'ticking time bomb' but in practice it has always been extended to a much wider population." Military investigators found this is indeed what happened at Abu Ghraib.

Again, as Ed Warner reported in the January 11, 2005 Voice of America (not exactly a Leftie publication), according to former U.S. Army interrogator Chris Mackey, when one group of people has complete control over another, the tendency is to abuse them. That is the warning in his recently published book,"The Interrogators," co-authored by Greg Miller of the Los Angeles Times. Mr. Mackey tells how he and the interrogators he supervised at U.S. military bases in Afghanistan avoided abusing the prisoners in their care, even though their job was to get the most information in the shortest possible time - enemy plans or arms that could be used against Americans."http://www.voanews.com/english/NewsAnalysis/2005-01-11-voa22.cfm

What's more, retired Air Force Col. John Rothrock, who interrogated captured Vietcong as a young captain, explains that even in so-called"ticking bomb" cases,"We did not physically abuse [prisoners," but rather used psychology, the shock of capture and of the unexpected."If I take a Bunsen burner to the guy's genitals, he's going to tell you just about anything… [I don't know] any professional intelligence officers of my generation who would think this is a good idea." Or listen to Army Col. Stuart Herrington, a military intelligence specialist who conducted interrogations in Vietnam, Panama and Iraq during Desert Storm, who believes that torture is simply"not a good way to get information."

Perhaps all these people are wrong. If you have evidence to the contrary can you please provide it to me. Thank you.

5. What the whole point of your memos are.

In your 2004 Chicago Law Review article,"Using Force,"http://papers.ssrn.com/sol3/papers.cfm?abstract_id=530022 you argued that international terrorism and the problem of"rogue nations" which don't uphold the rule of law demand a more flexible standard Government use of force in self-defense; one that focuses"less on temporal immanence and more on magnitude of potent harm and problem of an attack" and because of this, as I explained above, you argue for an"instrumental approach" weighing costs and benefits to the stability of international system based on the idea that American hegemony is an"international public good."

It's very interesting to read about a" costs benefits analysis that maximizes the stability of the international system," but what kind of system and under whose hegemony? In fact, you argue on p. 41 that international legal rules may be better"reconceived to encourage hegemonic powers to intervene to maintain international peace and security rather than to discourage them." Isn't this the 19th cent great power system all over again, only this time with only one world hegemon?

Perhaps this is why you argue that"we can view international stab as a public good because its proven its benefits to all nations in the international system but at same time is nonexclusive and non-rivalrous. Stability reduces need for defensive military expenditures." Now, perhaps we're not living on the same planet. Isn't it a fact that military expenditures have grown across the world since the end of the Cold War? Especially in the third world? And particularly in the US after September 11? And since when does the US have no rivals? What about China? What about the EU? What about Iran? Perhaps you should read Jonathan Nitzan's and Shimshom Bichler's Global Political Economy of Israel, which explains in detail how the arms-petrodollar coalition increasingly has solidified its power in the world political economy. http://bnarchives.yorku.ca

And who says the existing system—in which two billion people live on $2 per day and one billion on $1, is so good? One where tens of millions of people have died since World War II and wealth is distributed more unequally than ever in human history, where occupation and even genocide go unpunished while countries are invaded without legitimate reasons by all-powerful hegemons, where polar bears will be extinct in a generation and global warming has become" climate change" and creationism the official dogma of the White House? Is this really the best system we can have? Moreover, don't your neoconservative buddies support"instability,"" creative destruction," and believe, as neocon philosopher Michael Ledeen puts it, that the US is the most awesome and revolutionary force on earth. I'm not sure how the instability and stability play work together; please explain.

You further seem not to understand how everyone other than the US (and perhaps some Israelis) view the world system. You argue based on the National Security Strategy of the US in 2002 that the world has a common interest with the US in fighting extremism. But most of the world sees the US as among the most extremist countries on earth (in fact, the definition of rogue states as"regimes that brutalize their citizens and exploit natural resources for personal gains of rulers, threaten their neighbors and disregard international law, seek to develop or possess weapons of mass destruction, sponsor terrorism and reject basic human values" describes how most countries view the Bush Administration, which is probably why they"hate the US and every thing for which it stands" (in fact, most people don't hate the US, but rather our policies.)

Even more important for me is your June 25, 2003 testimony before the Senate Judiciary Committee, http://judiciary.senate.gov/testimony.cfm?id=826&wit_id=2352. It is here I believe that we see the true rationality underlying the policies you've advocated in your memos. In your testimony you discussed the reconstruction of Iraq and its constitution, and argue that the US has the right to make totally new laws as occupier. Now you begin by saying that"I've studied these issues for much of my career," but I can't for the life of me understand where and how you came up with the following position:"Occupying foreign territory during the transition period between an armed conflict and a declaration of peace, and establishing fundamental institutional changes to the government of an enemy nation, may be essential to reaching a successful conclusion to war. If allowed to remain in existence, the institutions of an occupied nation may continue to pose a threat to the safety of U.S. troops or the national security."

Now this might be a logical position to you, but it directly contradicts Art. 64 of the 4th Geneva Convention, as you admit in the same testimony. (It states:"[T]he Occupying Power may . . . subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfill its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.")

But Geneva of course doesn't matter to you; more important are US Supreme Court decisions from century ago. As you explained,"In several previous armed conflicts, the United States has exercised its authority to occupy and govern a foreign nation after a successful military campaign. The Supreme Court has clearly upheld this authority. In MacLeod v. United States, for example, which arose during the U.S. military occupation of the Philippines during the Spanish-American War, a unanimous Supreme Court explained that:

'[t]he right to . . . occupy an enemy’s country and temporarily provide for its government has been recognized by previous action of the executive authority, and sanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its own authority, and make rules and regulations for the conduct of temporary government, and to that end may collect taxes and duties to support the military authority and carry on operations incident to the occupation.'"

The Philippines? Isn't that where we began waterboarding"enemy combatants"?

You also quoted the Supreme Court discussing the U.S. occupation of Puerto Rico to the effect that"[u]pon the occupation of the country by the military forces of the United States, the authority of the Spanish Government was superseded . . . . The government must be carried on, and there was no one left to administer its functions but the military forces of the United States... The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer…. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world, and confirmed by the writings of publicists and decisions of courts – in fine, from the law of the nations."

Now this is classic imperialism pure and simple."The right to conquer" as defined by the Supreme Court almost a century ago is all we need to invade Iraq?" The laws of war" from decades before the Geneva Conventions have now superceded all the developments in international law since.? Now I understand why you and Alberto Gonzalez think Geneva can be declared"quaint and obsolete."

Perhaps these words of yours are the most troubling:"Eliminating a threat to the national security or achieving U.S. foreign policy goals may not only require the occupation of an enemy nation until its capacity to attack the United States has ended, but also the extensive reordering of an occupied nation’s domestic institutions."

Now let me get this straight, if the US has a foreign policy goal that can be furthered by invading and occupying another country, it's your opinion that we have the right to do so?! Is that right derived from our beneficial role as world hegemon providing a"public good" to the world system by maintaining stability—in plain English, the status quo of the US on top?

If we focus specifically on Iraq and its reconstruction, about which you claim to be an expert, why is it that in arguing against the clear letter of international law that"International law authorizes a victorious nation both to establish its own temporary occupation government and to make changes in the laws of the defeated nation prior to the conclusion of a treaty of peace. This authority includes the power to make fundamental institutional changes to the government of an occupied nation" you never mention what laws the US actually changed during its occupation? Draconian security laws? No! Privatizing the government, disempowering unions, opening up the economy to 100 percent private ownership, lowering taxes, unlimited and immediate repatriation of profits by MNCs out of the country, Of course! In your vast experience did you not read Order 39, 40 or 17 signed by Proconsul Bremmer which did these things, against international law and the clear interests of the Iraqi people?

I think the main problem with your account Professor Yoo is that you never take into consideration the question of US power or the history of imperialism—both European and American. You seem to think that 9/11 wiped the slate of history clean and that all the dynamics and processes that have evolved over the last few centuries that led to US and"Western" dominance of the rest of the world have no meaning or impact on the war on terror. Moreover, you seem unwilling to accept that the US has behaved or is capable of behaving against universal liberal norms (otherwise you wouldn't support arrogating such power to the President). Have you even used the word imperialism or power one in your writings in any way or critically interrogated the history and foundations of US foreign policy? I ask you this not because I think the US is somehow worse than any other country or imperial power, but rather because we are so much more like other countries and past empires than we wish to believe.

I'll leave you with two quotes from a couple of my favorite philosophers:"Those who forget history are condemned to repeat it" (George Santayana) and"Those who can make you believe absurdities will get you to commit atrocities" (Voltaire). I suggest you take both to heart before your next government assignment.



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N. Friedman - 2/13/2005

Mark,

I do not know what the best role for lawyers ought to be. I note what the practice of law currently is.

I would assume that understanding what Mr. Yoo has said and done - whether or not we agree with his position as argued -, we must understand that in the context of the practice of law as it currently is.

I cannot imagine that the usual practice of the government was only to produce neutral, from the perspective the judge, legal opinions. While, no doubt, such occurs, we must always, before reaching a conclusion, ask - if we want to be fair - what the lawyer was asked to do.

Now, regarding the substance of what he has written, some have taken aim at it. Others have agreed. Presumably, if he had to defend his client in court, we would see whether he is correct or his critics are correct. I trust you understand that neither of us know what a judge would actually conclude. At present, we know only that politically charged people, on both sides, make nasty accusations back and forth. If the administration has to defend its behavior in court, then we shall know more than we know now.


N. Friedman - 2/13/2005

Mark,

A further note. If you went to an attorney with a legal problem, you would expect the attorney to prepare a brief for your position. You would also expect the opponent to have an attorney who prepares a brief. Amazingly, the two briefs come to very different conclusions.

On your logic, your attorney's brief proves you wrong because there is a brief for the other side. On my theory, the briefs are arguments which are subject to judgment by others.

On your theory, it is not possible to have an attorney. On my theory, the attorney is a role player, not a person whose arguments prove or disprove anything. Which is to say, the fact that scholars disagree about the applicability of particular laws related to torture, etc., means only that more than one point of view is possible - as in all cases. It does not mean that the attorney is wrong. Such is confused thinking on your part.

But note: the attorney, Mr. Yoo, may well be wrong. He may be right. The fact that there are multiple positions that might be argued does not change the situation one iota.


N. Friedman - 2/13/2005

Mark,

I cannot imagine the logic by which your argument derives. While the law may have been violated, writing a legal paper taking a position does not prove that something violates US law. All it proves is that a lawyer can argue that it does not. Think about it. Your point is not even logical.


E. Simon - 2/13/2005

Are legal pronouncements always and only progressive, never retrogressive? This strikes me as a horrible assumption. Everyone knows that the Nazis were very modern people, and the Soviet Union saw itself as part of a common vision for the future. Is it your contention that every U.S. Supreme Court decision has been a more liberal, humanist and progressive interpretation of the law than the previous judgment it offered on a similar manner of law?


Mark A. LeVine (UC Irvine History Professor) - 2/13/2005

also, everyone, please check this out, which was relased on tuesday...

http://www.unhchr.ch/huricane/huricane.nsf/0/F3AF690DC18BFFD6C1256F9E0034AC95?opendocument

it says it more eloquently than i could.


Mark A. LeVine (UC Irvine History Professor) - 2/13/2005

well, the whole point of the yoo and related memos was specifically to find a legal way for the cia to engage in cruel inhuman and degrading treatment of detainees outside the borders of the US. so in that sense, there's no question that it was a violation of the covenant on civ and pol rights, and thus of US law...


N. Friedman - 2/13/2005

James,

There is certainly law. The question is whether specific behaviors are governed by such laws. Scholars disagree about these things. In the case of irregulars, the issue becomes even more gray than it does for regular soldiers. Which is to say, this is not a simple matter.


James Spence - 2/13/2005

Mr. Levine is right, there is a law about this. Do we just ignore it, a little circumvention to promote a political agenda? Then there is the moral question of the taking of another life and it seems odd that a country like the US, of which around 90 per cent express Christian precepts as Sunday worshippers, do more killing and torture than most countries in this day and age. As for torture this is obviously a relative thing. I suppose there are different grades: mega-torture to torture-lite. Bad marriages, the "coddling" of criminals by terrorizing them to the last second before their execution and the Bar exam- tortuous - as well as visiting in-laws who belong to a different political party. But we just have to deal with that and hope we aren’t next for water-boarding and scream for justice when it’s happening to us. Morally torture can be internalized as just as long as you’re not the victim. Then it certainly would offend your moral sense. Of course, torture can provide important information about terrorist operations and save lives. Although I don’t approve, I think man was tailor-made to torture and terrorize his fellow creatures as did the Nazi’s or when torture really shined between 1231 and 1542 (with the medieval water torture method, the victims nostrils were pinched shut and fluid was poured down his throat and instead of water, vinegar, urine, or urine and a combination of diarrhea were forced down as well). Nowadays we illuminate any conflicting philosophies between countries by using hi tech and legalities are shunned just as they were then. Shooting someone in the head is straightforward it’s more honest. You’ve solved the problem without being too mean and small. But when you have a worldwide hidden network of prisons where more than 3,000 al-Qaeda suspects have been held without trial for years, which is torture in itself in addition to the a la carte menu that follows, I wonder if the elitists of this administration realize how destructive this fundamentalist approach to the problem of solving terrorism is. It didn’t work in medieval times and it isn’t effective now. It’s just mean-spirited punishment derived from frustration. Punishment should be left to a higher law, that is, if we really believe we’re a Christian nation.


Mark A. LeVine (UC Irvine History Professor) - 2/13/2005

anyay, it doesn't matter if it offends your sense (no offense), or mine for that matter. it matters that it clearly violates art. 7 of the int'l covenant on civil and political rights, which has the force of federal law (and of course geneva 4, but let's give yoo and co the benefit of the doubt on that one). it is simply against the law to torture or use CID on anyone for any purpose. this is why the so-called torture memos take such pains to say the prez has 'plenary' authority to suspend laws in the war on terror as he sees fit. that's the only way to avoid his being prosecuted (for more on which, see www.indictpresidentbush.org)


Mark A. LeVine (UC Irvine History Professor) - 2/13/2005

shooting a would-be murder caught right before shooting someone is in no way comparable to grabbing someone off the street or from their home in a 'sweep', bringing them to an undisclosed detention facility for days, weeks or months without charge, torturing them without any evidence they've done anything wrong, and the like. it's always easy to pick the ticking time bomb scenario, but in reality it's almost never like this. see the critique of dershowitz i mention in the posting. i can tell so many stories from iraq that would show the reality of what US interrogiations are doing to people. i would suggest that before waiting to get the one would be terrorist just before s/he commits the act and torturing them to find out valuable information, there'd be a far greater chance of stopping terrorism by changing the policies that are helping produce it in the first place, and then treating terrorists like the criminal they are, rather than using a paradigm of war, which permits all sorts of the abuses in the name of 'national security'--this is precisely the logic behind yoo's arguments. c'est la guerre, as they say... i don't think they say 'c'est la crime'...


Mark A. LeVine (UC Irvine History Professor) - 2/13/2005

well, i have like 18 lawyers in my family so i have some understanding of them. more seriously, if you look at the history of the OLC, it has traditionally not sought to provide justifications for positions/policies of the white house, but rather to provide unbiased legal opinions. my view, and that of most critics of yoo's and other related opinions vis-a-vis interrogations, preemptive war, etc., is that they were written specifically to support the desired position of the white house, cia, etc. this is, to my understanding from speaking with and reading critiques from lawyers who have worked in the OLC, definitely an aberration from the office's traditional role.

and even if lawyers are supposed to do this, is that good? perhaps this betrays a much larger problem in the legal culture of our society, where lawyers have no problem justifying abhorrent practices, whether it's of the government or of mafia dons. can't we do better?


Mark A. LeVine (UC Irvine History Professor) - 2/13/2005

yes, of course, but is this where it ends? nothing since then? no mention of how legal doctrine on the issues have evolved in the last century? no mention that many of the decisions cited contravened the geneva conventions and other agreements reached in subsequent periods. that's my point.


N. Friedman - 2/12/2005

Mark,

By all the time, I mean it is common, not that it occurs in every argument or legal decision. Or, to put the matter differently, it is a normal practice for lawyers to cite precedent from the 19th Century or earlier.


N. Friedman - 2/12/2005

Mark,

It is rather normal to cite legal precedent from the 19th Century. If you examine cases decided by the Supreme Court, they do so all the time. Lawyers also cite them all the time.


N. Friedman - 2/12/2005

John,

You may perhaps be correct. I note that some have, in fact, defended torture. I would think that there is a slippery slope from torture. Which is to say, one begins torturing one for what seems to be good reasons. Then another, then another, etc.. Eventually, the predicate fact justifying the torture comes to an end but the practice continues unabated. Whether or not regulating torture, as Professor Dershowitz proposes, solves the noted problem is an open question. I am not sure, one way or the other.


John H. Lederer - 2/12/2005

The comments all seem to assume that torture is never morally justified.

I am armed. I see a murderer about to shoot someone. I shoot the murderer. He dies.

Most would agree that I would be morally correct in my actions.


Suppose that torture would similarly prevent the death of another? Would that be morally justified? Would it be better than killing to prevent the death of another?

The principal problem with torture is not torture per se. It is the difficulty of controlling it.


N. Friedman - 2/12/2005

James,

"Any notion that he is biased exists only as a cloud of possiblity until it is observed."

Which is to say, citing his legal opinions, rendered to a client, does not tell much about the author of the opinions.


James Spence - 2/12/2005

True, his beliefs are irrelevant and a lawyer should believe in his client. But if only so simple. Any notion that he is biased exists only as a cloud of possiblity until it is observed.


N. Friedman - 2/12/2005

James,

You may or may not be correct about Yoo's sympathies or beliefs. I have no idea.

His beliefs, however, are essentially irrelevant to his role as a lawyer. And it is unfair, to say the very least, to force a lawyer to adopt views contrary to those of his or her client.


James Spence - 2/12/2005

A quibbling over legalities here. Terrorism as a new kind of war, water boarding as torture that really doesn’t work, and the whole point of Yoos’ revealing memos are the secondary issues.

Prof. Yoo is must be on the team that has pushed for empire building . He must have some connection, directly or indirectly, to the Project for the New American Century (PNAC) and all it stands for: the establishment of a global American empire to bend the will of all nations. To bring the rest of the world under the umbrella of a new socio-economic Pax Americana. Cheney’s been contributing to this evolving work beginning with what began as the Defense Strategy for the 1990s, the larger plan for dominion over friends and enemies alike.


N. Friedman - 2/12/2005

Professor LeVine,

The reason the defense is made is that such is the obligation of the lawyer. No doubt you can find some legal eagle who asserts that which is not the case. My suggestion is that you examine the cannons of ethics and the opinions that have been issued against lawyers who, in fact, walk away from legal opinions presented on behalf of a client.

Now, you are correct, Mr. Yoo might have reached a different legal conclusion. The issue, however, is what his client asked of him. That is to say, when a client asks me to write an opinion, first and foremost is the context of the question. That is to say, am I being asked to predict what a judge would rule? or, is the goal of the opinion to cut-off the allegation that the client is acting willfully (as occurs particularly in the field of patent law in order to avoid the charge of willful infringement)? Further, was the opinion intended to propose what might be argued with some chance of being persuasive? or, was the attorney asked to play the role of judge? Without knowing such things, you cannot reach an opinion about the attorney from his writings.

Now, again, I assert that your position betrays your failure to understand the role of a lawyer. And, moreover, it betrays your failure to understand, not withstanding the article you now quote, that nearly all lawyers understand the obligation to not undercut a client as an absolute obligation, barring certain express circumstances. In this regard, I suggest, in the event you are ever sued, that you would expect nothing less from your attorney. Nor should you.


Mark A. LeVine (UC Irvine History Professor) - 2/12/2005

this is exactly yoo's response to all criticism. i don't buy it at all. please see robert vischer's "tortured ethics: abu ghraib and the moral lawyer at http://www.mirrorofjustice.com/mirrorofjustice/vischer/torturedethics.pdf.

moreover, as i pointed out, he could have looked at the relevant statutes and interpreted them "pro homines" (excuse the spelling if it's wrong), or pro humnan, which according to in'l lawyer victor conde is the sense in which lawyers are compelled to interpret the law whenever there is ambiguity, especially in international law. certainly his interpretations did not follow this injunction, moreover, they betray not the workings of an "amoral technician", which is perhaps the dominant view of how a lawyer should behave, but rather somehow who's moral position -- that it's okay to engage in CID and even torture as long as there's a legal loophole to do so -- is clearly influencing his admittedly unprecedented (in the sense that there were, according to yoo, no prior attempts to interpret the definitions of pain, suffering, etc. in the US torture statutes) definitions of the conditions under which CID rises to the level of torture.


Mark A. LeVine (UC Irvine History Professor) - 2/12/2005

yes, exactly. that's the reason i asked why he was using a supreme court decision from a century ago as a basis for contemporary policy. but thank you for clarifying this.
mark


N. Friedman - 2/12/2005

Attorneys are often asked to provide legal advice on topics. The goal - in fact the duty of an attorney - is to advance the agenda of the client within the limits of the law. Such is known as zealous representation and such, if you check, is required by the code of ethics governing the practice of law. Such is the case for both the private and, so far as I know, the government attorney.

I could imagine an historian inquring whether an attorney, asked later to defend a legal opinion, speaks his mind or, given that the lawyer maintains, as a matter of legal obligation, fidelity to the party given legal advice, is always placed in the compromised position of having to defend both himself (or herself) and not undermine the client. In fact, such appears to be the case.

In short, I think you are being unfair. Legitimately, you may properly inquire what the attorney thinks, as a person, about a topic. If you want to be fair, however, consider that the lawyer is not a free agent, especially after the lawyer has given legal advice that becomes public. And consider that such is the case even after the lawyer ceases representing the client.

As such, quoting legal opinions and defenses made of them later amounts is no basis to deny a person a position.


kenneth j bernstein - 2/12/2005

Even if there is a Supreme Court decision which would seem to authorize use of such force dating from the occupation of the Philippines, the Geneva Convention is later. As a ratified international agreement, it becomes, under Article VI, part of the Supreme Law of the Land [the description of the Constitution and its incidents], and thus would superceded anything prior, incluidng a Supreme Court decision, which is in opposition to the positions it establishes.


Richard Henry Morgan - 2/12/2005

My Oxford Dictionary of Quotations (3rd ed) has it:

"Those who cannot remember the past are condemned to fulfil it."

Some time past I read a rather long article devoted to the history of the quote. It said that in only one of several editions of Santayana's work did the word 'repeat' occur in the quote. I wish I could remember the article.


Don Willis - 2/11/2005

cheers, thanks.


Mark A. LeVine (UC Irvine History Professor) - 2/11/2005

here's what rejali said:

Mark Levine asked me what information we have regarding the Ramdohr trial. The
most extensive description I know in English of the Ramdohr trial is from
Milena Seborova, A Czech Trilogy (1990) Seborova was a Czech resistance fighter
and survivor at Ravensbruck and who seems to have attended the trial. The
following passage comes from pp. 117-118.


"Ludwig Ramdor joined the Nazi Party in 1937 and had been an officier of the
criminal investigation branch of the SS at Kassel. In July 1942 he received a
secret assignment from the chief of the Central Bureau of National Security
(reichssicherheitshauptamt) to go to Ravensbruck. He was to report back on the
conduct of the SS men there and on the general situation in the police sector.
At his trial it was proven that he had dosed women with narcotics and grilled
them in their drugged condition. He admitted that he had used "inhuman methods"
during his questioning.
Evidence also substantiated that he had once kept a young Polish woman,
Szewecka, in solitary confinement without meals and bed cover for twelve days,
solely because she had refused to inform against a friend. He ordered high
pressure water hoses to be applied to her twice a week for three weeks. After
this torture she had to be sent to the infirmary; miraculously she escaped the
gas chambers.
Ramdor also tied women into a "leap" with their heads bound tightly to their
feet. THen he pushed their heads into a wash basin until they were on the verge
of drowning.
He was sentenced to death by hanging, whereafter some ofhis friends and
relatives were overheard to criticze the "harsh" sentence. They reportedly said,
"Oh, how cruel for that good man; he never did harm to even a lizard; he never
so much as stepped on a worm."


At least according to Seborova then the charges against Ramdor pertained to the
torture of Szewecka (starvation, exposure to cold, highpressure showers),
interrogating women after injecting them with narcotics (the standard drugs for
this in this era would have been either sodium pentathol, amytal and scopolamine
- the so called truth drugs), and tying women in a leap and choking them in a
wash basin till they were on the verge of drowning.


Seborova's description is similar to the account given by Lord Russell in
Scourge of the Swastika (1954) which Mark Levine quotes. The full quote gives
similar charges:


"Rahmdohr carried out the cruellest physical and mental torture. One woman was
so badly beaten that she afterwards tried to commit suicide by opening a veinin
her neck and was treated by Treite. He admitted depriving prisoners of food,
beating them, giving them narcotic injections and questioning them under the
influence of drugs. He also used to tie prisoners' hands behind their backs and
make them lie on their stomachs on a table in such as way that their heads
protruded over the end of the table where he had placed a chair on which there
was a bowl of water: he then gripped women by the hair and pushed their faces
into the water.
Thus did Ramdohr carry out his interrogations. Such methods were not those of
the KRIPO to which he belonged but of the Gestapo to which he was an apt
discipline."


Both sources describe Ramdor as a member of the KRIPO or Kriminal Polizei, the
old Weimar criminal police that continued under the Nazi State and the Gestapo's
persistent rival but who, unlike other KRIPO, apparently engaged in tortures of
the sort described. Neither passage describes Ramdor as a member of the
medical staff or performing medical experiments, and, I checked Lifton's Nazi
Doctors, he is not listed in the index either. Ramdor's official title at the
camp was "Assistant of Political Division" so this is consistent with his job in
administrering interrogations. As I think Josif Garlinski states in Fighting
Auschwitz, camps had political departments, and political prisoners who came in
could expect interrogation immediately upon arrival as well as for several
months afterwards. Interrogation did not stop upon being deported to the camps.
This seesm to have been Ramdor's responsibility.


Seborova gives a list of all the sixteen defendants tried by the British
military court. The sentences, including the doctors who ran the medical
experiments, I list below.


Such then were the circumstances, as far as is known in English, that led to
Ramdohr's execution. Further research would have to dig out the original
prosecutor charges at the trial in British archives if they are available. One
would think that if Ramdohr had performed other acts of torture Seborova would
have mentioned them even if he was tried specifically on those provable counts.
Only the actual file would probably answer this question. It may also be
difficult to determine whether Ramdor was originally KRIPO or not because so
many files were destroyed. If there is more to be known about Ramdor's torture
techniques, I would certainly appreciate knowing this. Ramdor was a unique
interrogator even among Gestapo interrogators in this period - along with Masuy
in France who was another frighteningly original man, and I don't know of others
who used a torture style similar to his (the usual preference being whips and
clubs). Whether this pertains to his KRIPO origins is unclear.

As to the disproporitionality of the punishments, and my memory is dim on this,
but I seem to recall reading British military tribunals handed out many more
death penalties than did the famous International trials, but that is a question
put to an expert on war crimes trials in World War II.


Darius Rejali
Reed College


Mark A. LeVine (UC Irvine History Professor) - 2/11/2005

this is a good question. from my information waterboarding was his forte, but it certainly could be that it was the whole packgage that led him to the gallows. but my larger point is that once one begins with even a milder technique, the sliding down into ever worse practice is inevitable. so the waterboarder becomes and medical experimenter, etc... i would check with darius rajali of reed university to follow up. i will contact him too.


Don Willis - 2/10/2005

Was Ludwig Ramdohr executed because of the practice of waterboarding? He was one of a number of medical staff members at Ravensbruck who were executed as a result of medical experiments on human subjects, while others received prison sentences. Numerous high-ranking Nazi and German officials with blood on their hands received prison sentences and were later released, so I would be surprised that waterboarding alone, short of murder by drowning, would lead to a death sentence. Are there other circumstances in Ramdohr's case that warranted his execution?