Chapman Law Review
Spring 2009
Symposium Issue
Lincoln’s Constitutionalism in Time of War: Lessons for the War on Terror?
Articles
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
M. Katherine B. Darmer [tippy title=”*” header=”off”]Professor of Law, Chapman University. I thank all of the current and former colleagues who provided helpful comments on earlier drafts. I especially thank Deepa Badrinaryana; Marisa Cianciarulo, Roman Darmer, II; Kurt Eggert, Francine Lipman; Mark Osler and Lawrence Rosenthal. Thanks are also due to Megan Krebbeks and the other editors and staff of the Chapman Law Review for excellent editing suggestions.[/tippy]
Copyright (c) 2009 Chapman Law Review; M. Katherine B. Darmer
Introduction
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. [tippy title=”1″ header=”off”]Richard Cohen, A Plunge From the Moral Heights, in Civil Liberties vs. National Security in a Post-9/11 World 317, 319 (M. Katherine B. Darmer, Robert M. Baird & Stuart E. Rosenbaum, eds., 2004) [hereinafter, “Civil Liberties” ].[/tippy]
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, [tippy title=”2″ header=”off”]More than seventy years ago, a unanimous Supreme Court held that the use of confessions extracted through torture violated the Due Process Clause. See Brown v. Mississippi, 297 U.S. 278, 286 (1936) (describing procedures used as “revolting to the sense of justice”). For a poignant discussion of the case, see Morgan Cloud, Torture and Truth, 74 Tex. L. Rev. 1211 (1996); see also M.K.B. Darmer, Beyond Bin Laden and Lindh: Confessions Law in an Age of Terrorism, 12 Cornell J. L. & Pub. Pol’y 319, 329-30 (2003).[/tippy] 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. [tippy title=”3″ header=”off”]See, e.g., Thomas P. Crooker, Torture, with Apologies, 86 Tex. L. Rev. 569 (2008) (reviewing Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts (2007) and Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (2006) as books that “eschew the practice of principle, articulating instead consequentialist apologies on behalf of official actions ranging from the suppression of dissent to the practice of torture.”); cf. Alan M. Dershowitz, Should the Ticking Bomb Terrorist Be Tortured? A Case Study in how a Democracy Should Make Tragic Choices, in Civil Liberties, supra note 1, at 189-214 (advocating availability of “torture warrants” in some situations). For a thorough critique of the “ticking bomb” scenario, see Alan Clarke, Creating a Torture Culture, 32 Suffolk Transnat’l L. Rev. 1, 21-28 (2008) (pointing out that reasoning is “fallacious” and has no “practical significance”) and David Luban, Liberalism, Torture, and the Ticking Bomb, 91 Va. L. Rev. 1425, 1444 (“in a world of uncertainty and imperfect knowledge, the ticking-bomb scenario should not form the point of reference.”). Ordinary citizens also seem willing to condone torture. See id. at 1425-26 (noting that “American abhorrence to torture…appears to have extraordinarily shallow roots” after September 11 and that support for torture “runs independent of progressive or conservative ideology.”). Following this article’s submission to Chapman Law Review, new allegations surfaced regarding the extent to which waterboarding had been used on particular detainees. See note 53, infra. These allegations and related subjects were topics of a debate on executive power held at Chapman University on April 21, 2009. John Yoo and John Eastman were on one side of the debate and Lawrence Rosenthal and I were on the other. See generally Webcast: Presidential Power Debate (Chapman University School of Law April 21, 2009) (http://www.chapman.edu/law/webcasts/). Because former Administration memoranda regarding the details of waterboarding and other interrogation techniques were released after this article was drafted, those new details are beyond the scope of this article. They will be addressed in more detail in my forthcoming article, What Can (Should?) Be Done with Waterboarded Confessions?.[/tippy]
When I first read the August 1, 2002 Department of Justice Memorandum by Jay Bybee and John Yoo regarding torture, [tippy title=”4″ header=”off”]Regarding the memo’s authorship, see infra nn.27-32 and accompanying text.[/tippy] my reaction was one that occurs “[t]oo often in the academy.” [tippy title=”5″ header=”off”]Email from Kurt Eggert dated 3/11/09 (on file with author; sent regarding issue unrelated to torture).[/tippy] We “talk in muted voices, hushed, pseudo-intellectual whispers, unsure whether we should take a stand . . . .” [tippy title=”6″ header=”off”]Id.[/tippy] Despite my initial reticence, the memorandum was roundly, almost uniformly condemned in the academic community. [tippy title=”7″ header=”off”]See, e.g., Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1231 & n.182 (2006) (“In the two years since it was leaked to the public, the Bybee Memorandum has been withered by criticism for the poor quality of its legal analysis (citing sources of criticism, including statement by Yale Law School Dean Harold Hongju Koh that it was “perhaps the most clearly erroneous legal opinion I have ever read.”)); Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681, 1703-09 (2005) (analyzing memo and concluding that the quality of legal work reflected therein “is a disgrace”); Luban, supra note 3, at 1455 (noting “near consensus that the legal analysis in the…Memo was bizarre”); cf. Erwin Chemerinsky, Civil Liberties and the War on Terror: Seven Years After 9/11 History Repeating: Due Process, Torture and Privacy During the War on Terror, 62 SMU L. Rev. 3, 12 (2009) (calling for investigation and prosecution of Bybee, Yoo and others for war crimes).[/tippy] While I did join the choir of condemners, my voice was not among the early, courageous voices of criticism. [tippy title=”8″ header=”off”]As an edited book I was working on regarding civil liberties and national security went to press (see Civil Liberties, supra note 1) the Abu Ghraib scandal came to light, as did the August 1, 2002 memorandum regarding interrogation techniques, which I included in the book more than five years ago without “weighing in” as to the memo’s merits. See id. at 17 (describing Abu Ghraib and developments regarding the memo).[/tippy]
Perhaps I was over-awed by the credentials of those who produced the memorandum [tippy title=”9″ header=”off”]John Yoo, who has acknowledged an important role in drafting the memorandum, is a professor of law at Berkeley and former law clerk to the Honorable Clarence Thomas. He is widely published in leading law reviews. At the time this article was drafted, Professor Yoo held a distinguished visiting professorship at Chapman University School of Law. Jay Bybee, the memorandum’s signatory, is now a judge on the United States Court of Appeals for the Ninth Circuit.[/tippy] 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. [tippy title=”10″ header=”off”]See David Glenn, ‘Torture Memos’ vs. Academic Freedom, Chron. Higher Educ. (Wash., D.C.), March 20, 2009, at A12 (noting that Chapman’s Law School Dean John C. Eastman is one of Professor Yoo’s “staunchest advocates;” “After September 11, we were in unchartered territory, Mr. Eastman says….[A]nd I think John [Yoo] actually got it right most of the time.”); but cf. supra note 3 (noting academics who have defended tactics such as torture).[/tippy] Having lived and worked in Manhattan, I was deeply affected by the tragedy of September 11 [tippy title=”11″ header=”off”]The World Trade Center was for me, like all New York residents, both symbol and guidepost. I worked in the shadow of the towers, in lower Manhattan, as an Assistant United States Attorney for four years. In my early days in the office, respected senior colleagues were prosecuting those responsible for the first attacks on the Towers, which attacks occurred in 1993. Other colleagues became involved later in the investigation of the attacks on the U.S.S. Cole. The name Osama bin Laden was familiar to me even before September 11, and it was the first name that crossed my mind when the terrorists struck. When the towers collapsed, I felt an acute sense of “survivor’s guilt.” Having left Manhattan for the comparative safety of Chapman’s academic halls in 1999, I listened raptly to the tales of former colleagues’ stories of escape from lower Manhattan. I broke down in a faculty meeting when a cousin’s wife could not at first be located in New York City on the day of the attacks. A well-respected FBI agent whom I had briefly worked with died at the Towers. Visiting Manhattan now is disorienting, with the lack of the landmark as a point of reference a constant reminder of the horror of how it was lost.[/tippy] 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. [tippy title=”12″ header=”off”]See Civil Liberties, supra note 1, at 303-15 (excerpted copy of the memorandum).[/tippy] 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.” [tippy title=”13″ header=”off”]See Luban, supra note 3, at 1452 (noting that “Abu Ghraib is not a few bad apples–it is the apple tree.”); see also Statement of Senator Patrick Leahy on Abuse of Foreign Detainees, Oct. 1, 2004, available at http://leahy.senate.gov/press/200410/100104C.html (noting that the Bush Administration has maintained that the abuses that occurred at Abu Ghraib were a result of “a few bad apples”).[/tippy] 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 [tippy title=”14″ header=”off”]See Michael Greenberger, Indefinite Material Witness Detention Without Probable Cause: Thinking Outside the Fourth Amendment 3 (Univ. of Md. Sch. of Law Research Paper No. 2004-01, 2004), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=494763.[/tippy] 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. [tippy title=”15″ header=”off”]See John Tehranian, Whitewashed: America’s Invisible Middle Eastern Minority 134-35 (2008).[/tippy] Even more troubling, it became plain that tactics such as waterboarding had been used by our country in interrogating suspects. [tippy title=”16″ header=”off”]See, e.g., Marjorie Cohn, Trading Civil Liberties for Apparent Security is a Bad Deal, 12 Chap. L. Rev. at 623-24 (detailing abuses, including torture at both Guantanamo Bay and Abu Ghraib); see also generally Ernesto Hernández-López, Boumediene v. Bush and Guantanamo, Cuba: Does the “Empire Strike Back”?, 62 SMU L. Rev. 117 (2009) (placing detentions at Guantanamo Bay in historical, post-colonial context).[/tippy] 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. [tippy title=”17″ header=”off”]See W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals, 91 Cornell L. Rev. 67, 75-85, 98-100 & n.110 (2005) (discussing the torture memo controversy and noting several articles criticizing the memos).[/tippy] 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, [tippy title=”18″ header=”off”]See, e.g., Waldron, supra note 7, at 1703-09.[/tippy] 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. [tippy title=”19″ header=”off”]I acknowledge the inelegance of a focused piece on waterboarding given the contemporaneity of Yoo’s brief visitorship at Chapman, but with issues related to memoranda written by Yoo being addressed almost daily in the press, it is impossible to ignore them.[/tippy]
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. [tippy title=”20″ header=”off”]John Yoo, Obama Made a Rash Decision on Gitmo, Wall St. J., Jan. 29, 2009, at A15.[/tippy] 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. [tippy title=”21″ header=”off”]In grappling with the title of the symposium panel, I started with my office copy of Black’s Law Dictionary in an effort to illuminate the understood difference between the juxtaposed terms. Black’s Law Dictionary formerly defined “civil liberties” as “Personal, natural rights guaranteed and protected by Constitution….” And for “civil rights,” it said simply “see Civil liberties.” Black’s Law Dictionary (5th ed. 1979). Sometimes I think we think of “civil liberties” in terms of negative liberties, or freedom from governmental interference with, e.g., free speech, whereas “civil rights” sometimes connotes positive rights. “Civil rights” is often also a term associated with the attainment of right by minority groups. See, e.g., Websters II New Riverside Dictionary (1984) (defining “civil liberty” as “[f]reedom from governmental infringement of such individual rights as freedom of speech and action”). Indeed, the more current version of Black’s Law Dictionary reflects this distinction, with civil liberty defined as “freedom from undue governmental interference or restraint…also termed civil right.” Civil right is then separately defined as “the individual rights of personal liberty guaranteed by the Bill of Rights and by the 13th, 14th, 15th, and 19th Amendments, as well as by legislation such as the Voting Rights Act. Civil Rights Include especially the right to vote, the right of due process, and the right of equal protection under the law” Black’s Law Dictionary 263 (8th ed. 2004).[/tippy] 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.”’ [tippy title=”22″ header=”off”]Yoo, supra note 20.[/tippy] 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. [tippy title=”23″ header=”off”]I acknowledge concerns that the reality of our new president’s policies regarding civil liberties may not live up to campaign rhetoric. See Remarks of Nadine Strossen, Chapman University Dean’s Dialogue Series (March 13, 2009) (available at http://www.chapman.edu/law/webcasts/); William Glaberson, U.S. Won’t Label Terror Suspects as ‘Combatants,’ N.Y. Times, March 14, 2009, at A1 (noting the current Justice Department’s argument “that the president has the authority to detain terrorism suspects [in Guantanamo] without criminal charges…”).[/tippy] 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” [tippy title=”24″ header=”off”]Richard Cohen, A Plunge from the Moral Heights in Civil Liberties, supra note 1, at 317.[/tippy] 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 [tippy title=”25″ header=”off”]See Chemerinsky, supra note 7, at 12 (noting concerns raised by military personnel and their loved ones that other countries will not follow international law when dealing with American prisoners).[/tippy] 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. [tippy title=”26″ header=”off”]In his dissenting opinion in Olmstead v. United States, Justice Brandeis stated that “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). I re-read this passage recently in a context unrelated to the subject of torture, but it resonated in this context and I note that Nadine Strossen, in a recent article, referred to Brandeis’s warning in the context of discussing Yoo and other Bush Administration lawyers. See Nadine Strossen, Freedom and Fear Post-9/11: Are We Again Fearing Witches and Burning Women?, 31 Nova L. Rev. 279, 287 (2007); see also Cohn, supra note 16, at 623 (also citing to Brandeis’s Olmstead dissent in the context of the War on Terror). Dean Erwin Chemerinsky has also cited to Brandeis’s dissent in the context of the War on Terror. See Chemerinsky, supra note 7, at 15.[/tippy]
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 [tippy title=”27″ header=”off”]See Civil Liberties, supra note 1, at 303-15 (excerpted copy of OLC memorandum) [hereinafter “BYTAP Memo” ].[/tippy] 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, [tippy title=”28″ header=”off”]See id. at 321-23; Evan Wallach, Drop by Drop: Forgetting the History of Water Torture In U.S. Courts, 45 Colum. J. Transnat’l L. 468, 469-70 (2007) (noting that Yoo drafted the memo).[/tippy] which is sometimes referred to as the “Yoo Memorandum,” sometimes as the “Bybee Memorandum,” [tippy title=”29″ header=”off”]Peter Margulies, True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers, 68 Md. L. Rev. 1, 36 (noting that the “Bybee Memo” …“was actually authored by John Yoo, and eventually withdrawn by Jack Goldsmith”) and n.167 (noting that author refers to memo as “Yoo Memo” for clarity); cf. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1229 & n.179 (2006) (referring to memorandum as the “Bybee Memorandum” while noting that many have ascribed the writing to Yoo and that the memo has been described as “Yoo’s most famous piece of advice”); Waldron, supra note 7, at 1703-04 (referring to memorandum as the “Bybee Memorandum”); Luban, supra note 3, at 1454-55 (also referring to the document as the “Bybee Memorandum”).[/tippy] and sometimes as the “Torture Memorandum.” [tippy title=”30″ header=”off”]See Glenn, supra note 10, (referring to various Yoo Memoranda as the “Torture Memos”).[/tippy] 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,” [tippy title=”31″ header=”off”]See Erwin Chemerinsky, The Assault on the Constitution: Executive Power and the War on Terrorism, 40 U.C. Davis L. Rev. 1, 16 (2006).[/tippy] and so I will refer to the memorandum as the “Bybee-Yoo Torture and Power Memorandum,” or BYTAP Memo. [tippy title=”32″ header=”off”]As an aside, there is something unsettling about the degree of opprobrium faced by Professor Yoo when contrasted with the relative quiet regarding Judge Bybee. I have read no reports of protests at the Court of Appeals where Judge Bybee sits, whereas Yoo has been the target of a number of protests (including a very loud one outside the building where this is being written). I also note that Alberto Gonzalez seems to have faced more vilification than others equally complicit in the failings at the Justice Department. Is it a coincidence that Yoo and Gonzalez, who seem to have faced the sharpest criticism, are Asian and Latino, respectively, whereas Jay Bybee is a white man? I think this is a troubling question, but one that I will leave aside for now while acknowledging its existence.[/tippy]
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; [tippy title=”33″ header=”off”]Marjorie Cohn, Cowboy Republic: Six Ways the Bush Gang has Defied the Law 36 & n.19 (2007) (noting that memo was written after Attorney General Gonzalez met with lawyers for the Defense Department and for Vice President Dick Cheney “to discuss specific interrogation techniques”) (citing Michael Hirsh, John Barry, & Daniel Klaidman, A Tortured Debate Amid Feuding and Turf Battles, Lawyers in the White House Discussed Specific Terror-Interrogation Techniques Like “Water- Boarding” and “Mock Burials,” Newsweek, June 21, 2004, at 50).[/tippy] and (2) the claim of unlimited executive power to engage in any tactic, including torture. [tippy title=”34″ header=”off”]See Chemerinsky, supra note 31, at 16.[/tippy]
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.” [tippy title=”35″ header=”off”]See 18 U.S.C. §§ 2340-2340A (2006) (discussed in BYTAP Memo, supra note 12, at 305).[/tippy] 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 . . . . [tippy title=”36″ header=”off”]18 U.S.C. § 2340.[/tippy]
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.” [tippy title=”37″ header=”off”]BYTAP Memo, supra note 12, at 305 (emphasis added).[/tippy]
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.” [tippy title=”38″ header=”off”]Id. at 311 (emphasis added).[/tippy] 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. [tippy title=”39″ header=”off”]Dawn E. Johnsen, What’s A President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B.U. L. Rev. 395, 403 (2008); see also Chemerinsky, supra note 31, at 16.[/tippy] 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, [tippy title=”40″ header=”off”]See, e.g., Margulies, supra note 29, at 37-40.[/tippy] 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.” [tippy title=”41″ header=”off”]Id. at 39.[/tippy] 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, [tippy title=”42″ header=”off”]Id. at 22.[/tippy] while ignoring long-term consequences of acting unilaterally. [tippy title=”43″ header=”off”]See id. at 47-48.[/tippy] The BYTAP Memo is premised on “the epic assertions of executive power proclaimed by Yoo.” [tippy title=”44″ header=”off”]Id. at 82.[/tippy]
The conservative Jack Goldsmith, who succeeded Yoo at OLC, found that Yoo’s memoranda were not only one-sided but contrary to law. [tippy title=”45″ header=”off”]Glenn, supra note 10, at A12 (citing Jack L. Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007)).[/tippy] “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.”’ [tippy title=”46″ header=”off”]Id. Goldsmith ultimately resigned over concerns regarding the BYTAP Memo. See Johnsen, supra note 39, at 403.[/tippy] 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.” [tippy title=”47″ header=”off”]U.S. Const. art. II, § 3; U.S. Const. art. I, § 8.[/tippy]
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.” [tippy title=”48″ header=”off”]See Morrison, supra note 7, at n.182.[/tippy] Yet the BYTAP Memo has “proved to be enormously influential.” [tippy title=”49″ header=”off”]Luban, supra note 3, at 1454.[/tippy] 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.” [tippy title=”50″ header=”off”]See Margulies, supra note 29, at 40-41 (citing Memorandum from Daniel Levin, Acting Asst. Att’y Gen., to James B. Comey, Deputy Att’y Gen. (Dec. 30, 2004)).[/tippy] 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.” [tippy title=”51″ header=”off”]Id. at 41; see also Luban, supra note 3, at 1456 (“Although the Levin Memo condemns torture and repudiates [the BYTAP Memo’s] narrow definition of ‘severe pain,’ a careful reading shows that it does not broaden it substantially.”); cf. Chemerinsky, supra note 31, at 16 (“The significance of the Torture Memo in terms of the Bush Administration’s views of executive power cannot be overstated.”).[/tippy] One of the tactics the Administration sought to justify was waterboarding. [tippy title=”52″ header=”off”]See Margulies, supra note 29, at 41.[/tippy]
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. [tippy title=”53″ header=”off”]See Clarke, supra note 3, at 2, 39-40 & n.195 (noting that waterboarding was used on at least three detainees); see also Cohn, supra note 16, at 624 (noting that United States has admitted to waterboarding); Margulies, supra note 29, at 41 (noting that waterboarding was used “at least for three high-level al Qaeda detainees”). New details have now emerged regarding the extent to which waterboarding was used: 183 times on one detainee and 83 times on another. See Memorandum from Steven G. Bradbury for John A. Rizzo, Senior Deputy General Counsel, CIA, 37 (May 30, 2005).[/tippy] The BYTAP memo’s narrow definition of torture may well have been designed to allow for this particular procedure. [tippy title=”54″ header=”off”]See Cohn, supra note 33, at 36 (describing Newsweek account).[/tippy]
Professor Jeremy Waldron’s article, Torture and Positive Law: Jurisprudence for the White House [tippy title=”55″ header=”off”]Waldron, supra note 7.[/tippy] 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.” [tippy title=”56″ header=”off”]See id. at 1686.[/tippy] 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.” [tippy title=”57″ header=”off”]Id. at 1687.[/tippy] 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. [tippy title=”58″ header=”off”]Evan Wallach, Drop by Drop: Forgetting the History of Water Torture In U.S. Courts, 45 Colum. J. Transnat’l L. 468 (2007).[/tippy] 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. [tippy title=”59″ header=”off”]Id. at 476-77.[/tippy] “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.” [tippy title=”60″ header=”off”]Id. at 477. For example, one defendant received a ten-year sentence. See id. at 504 & n.159.[/tippy]
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. [tippy title=”61″ header=”off”]Id. at 476 (quoting Excerpts from testimony of Cpt. Chase Jay Nielsen, Trial Record at 55, United States v. Sawada, 5 L. Rep. Trials of War Criminals 1 (1948)). Nielsen was one of ten U.S. B-25 bombers captured by the Japanese during a raid. The Japanese tried the men before a Japanese Army Tribunal and executed three of the men. The U.S. Army later prosecuted the trial’s participants. See id. at n.1 (citing Craig Nelson, The First Heroes (2002)).[/tippy]
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.” [tippy title=”62″ header=”off”]Id. at 502.[/tippy] The sheriff was convicted and received a ten-year prison sentence; other defendants also received significant prison sentences. [tippy title=”63″ header=”off”]See id. at 504 & n.159.[/tippy] At sentencing, the judge noted that the Texas law enforcement operation would embarrass even a “dictator.” [tippy title=”64″ header=”off”]Id. at 504.[/tippy]
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.” [tippy title=”65″ header=”off”]Id. at 474.[/tippy]
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. [tippy title=”66″ header=”off”]Christopher Hitchens, Believe Me, It’s Torture, Vanity Fair, August 2008 (available at http://www.vanityfair.com/politics/features/2008/08/hitchens200808).[/tippy] 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.” [tippy title=”67″ header=”off”]Id. at 2.[/tippy] Hitchens was already wearing a hood, and three layers of “enveloping towel” were applied. [tippy title=”68″ header=”off”]Id. at 2-3.[/tippy] 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. [tippy title=”69″ header=”off”]Id. at 3.[/tippy]
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. [tippy title=”70″ header=”off”]Id.[/tippy]
Hitchens took strong issue with the “official lie” that waterboarding “‘simulates’ the feeling of drowning.” [tippy title=”71″ header=”off”]Id. at 2.[/tippy] 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.” [tippy title=”72″ header=”off”]Id. at 2-3.[/tippy] Even after the ordeal, Hitchens has experienced feelings of panic upon awakening or in circumstances where he is short of breath. [tippy title=”73″ header=”off”]Id. at 3.[/tippy] He concludes that “if waterboarding does not constitute torture, then there is no such thing as torture.” [tippy title=”74″ header=”off”]Id. at 3.[/tippy]
A majority of Americans share Hitchens’ view that waterboarding constitutes torture. [tippy title=”75″ header=”off”]Clarke, supra note 3, at 2 & n.4 (citing results of 2007 CNN poll).[/tippy] Judge Wallach, too, concludes that waterboarding is torture even under the narrow BYTAP Memo definition. [tippy title=”76″ header=”off”]Wallach, supra note 58, at 506.[/tippy] 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, [tippy title=”77″ header=”off”]Cf. Chemerinsky, supra note 7, at 11 (noting our country’s long history of condemning torture).[/tippy] we have a “special responsibility” to enforce the prohibition, as noted by the journalist Eyal Press. [tippy title=”78″ header=”off”]Eyal Press, In Torture We Trust? in Civil Liberties, supra note 1, at 228.[/tippy] We lead by example, and, without condemning torture ourselves, we cannot expect others to do so. [tippy title=”79″ header=”off”]Id.[/tippy] 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. [tippy title=”80″ header=”off”]Philip B. Heymann, Torture Should Not Be Authorized in Civil Liberties, supra note 1, at 217; see also Chemerinsky, supra note 31.[/tippy] 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.” [tippy title=”81″ header=”off”]Id. The notion that torture will save lives is a dubious proposition, moreover. “Torture subjects typically know less than what we think we know, and often tell us what we want to hear.” Margulies, supra note 29, at 34; see also Laurie Magid, Deceptive Police Interrogation Practices: How Far is Too Far?, 99 Mich. L. Rev. 1168, 1173 (2001) (“In Brown [v. Mississippi, involving torture] and other early cases, the Court clearly believed that innocent persons had been convicted, and that their confessions were unreliable”); cf. M. Katherine B. Darmer, Miranda Warnings, Torture, the Right to Counsel and the War on Terror, 10 Chap. L. Rev. 631, 654 (2007) (noting that the criminal justice system has taught us much “about the dangers and unfairness of coerced confessions”).[/tippy]
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. [tippy title=”82″ header=”off”]Yoo, supra note 20.[/tippy] 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.” [tippy title=”83″ header=”off”]Id.[/tippy]
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. [tippy title=”84″ header=”off”]Clarke, supra note 3, at 18.[/tippy] “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.” [tippy title=”85″ header=”off”]Id.[/tippy] 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.” [tippy title=”86″ header=”off”]Press, supra note 78, at 223-24; cf. generally Hernández-López, supra note 16, at 139-41 (pointing out European and Western tendencies to see non-Westerners as “‘others,’ savages, or barbarians” and how this tendency excludes non-Westerners).[/tippy]
Moreover, while some of those classified as “enemy combatants” have in fact been terrorists, others have not been. [tippy title=”87″ header=”off”]See Chemerinsky, supra note 7, at 8 (noting mistakes made at Guantanamo Bay).[/tippy] 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.” [tippy title=”88″ header=”off”]Clarke, supra note 3, at 24.[/tippy]
Clarke illustrates in his recent article, Creating a Torture Culture, that the use of torture is not easily cabined. [tippy title=”89″ header=”off”]Id. at 21.[/tippy] Rather:
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. [tippy title=”90″ header=”off”]Id. See also Luban, supra note 3, at 1445-46 (noting that torture is not limited to “‘one-off’ decisions” and discussing the “normalization of torture”).[/tippy]
Relying on history and behavioral science studies, Clarke also points out that torture is a “true slippery slope.” [tippy title=”91″ header=”off”]Clarke, supra note 3, at 13.[/tippy] Most of us are capable of torture and, “in the absence of enforced prevention rules, systemic abuses become prevalent.” [tippy title=”92″ header=”off”]Id.[/tippy]
Even after Abu Ghraib and revelations about the extent to which waterboarding was used, [tippy title=”93″ header=”off”]Regarding recent new information about the extent of the use of waterboarding against two detainees, see note 53, supra.[/tippy] Yoo acknowledges no such risk of systemic abuse, focusing instead only on the risk attendant to foregoing harsh interrogation tactics. [tippy title=”94″ header=”off”]Yoo, supra note 20. At the Chapman debate held April 21, 2009, at which time it was known that waterboarding had been used against one detainee 183 times and against another, 83 times, see note 53, supra, Yoo remained seemingly untroubled regarding its use.[/tippy] 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.” [tippy title=”95″ header=”off”]Id.[/tippy] 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.” [tippy title=”96″ header=”off”]Clarke, supra note 3, at 3.[/tippy] 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,” [tippy title=”97″ header=”off”]Yoo, supra note 20.[/tippy] 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. [tippy title=”98″ header=”off”]Cohen, supra note 1, at 318-19.[/tippy]
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. [tippy title=”99″ header=”off”]See Yoo, supra note 20.[/tippy] 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.
Conclusion
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?” [tippy title=”100″ header=”off”]Press, supra note 78, at 219.[/tippy] Indeed.