Ban Torture

A newly-declassified 2003 Justice Department memorandum systematically removes any possible legal boundary around harsh interrogations by the military. The 81-page memo (part 1 and part 2) by John Yoo was reversed in 2004 December 2003 by Jack Goldsmith and February 2005 by Daniel Levin, but subsequent still-secret memos written in 2005 remain in effect. Yoo argued that “In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy,” and even if techniques were found to be illegal, “necessity or self-defense could provide justifications for any criminal liability.” The memo was obtained by the ACLU under the Freedom of Information Act. (Washington Post) (New York Times)

Excerpts (updated):

Alien enemy combatants

The Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad. (p. 1)

There are two criminal prohibitions that apply to the conduct of U.S. persons outside the United States: the War Crimes Act, 18 U.S.C. § 2441, and the prohibition against torture, 18 U.S.C. §§ 2340-2340A. We conclude that the War Crimes Act does not apply to the interrogation of al Qaeda and Taliban detainees because, as illegal belligerents, they do not qualify for the legal protections under the Geneva or Hague Conventions that section 2441 enforces. In regard to section 2340, we conclude that the statute, by its terms, does not apply to interrogations conducted within the territorial United States or on permanent military bases outside the territory of the United States. Nonetheless, we identify the relevant substantive standards regarding the prohibition on torture should interrogations occur outside that jurisdictional limit. (p. 32)

Commander-in-Chief authority

Federal criminal laws of general applicability do not apply to properly-authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution’s grant of the Commander in Chief power solely to the President. (p. 1)

In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy. (p. 5)

In our view, Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any argument that these statutes apply to persons under the direction of the President in the conduct of war. (p. 13)

We have even greater concerns with respect to prosecutions arising out of the exercise of the President’s express authority as Commander in Chief than we do with prosecutions arising out of the assertion of executive privilege. Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective conduct of a military campaign. Indeed, such operations may be of more importance in a war with an international terrorist organization than one with the conventional armed forces of a nation-state, due to the former’s emphasis on covert operations and surprise attacks against civilians. It may be the case that only successful interrogations can provide the information necessary to prevent future attacks upon the United States and its citizens. Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that would prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States. (p. 19)

The Fourth Amendment

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo,
Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001). (p. 8 note 10)

Obligations under international law

We conclude that based on its reservation [upon ratification of the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment], the United States’ obligation extends only to conduct that is “cruel and unusual” within the meaning of the Eighth Amendment or otherwise “shocks the conscience” under the Due Process Clauses of the Fifth and Fourteenth Amendments. (p. 1-2)

Customary international law is not federal law and that the President is free to override it at his discretion. (p. 2)

Defense if prosecuted
We discuss defenses to an allegation that an interrogation method might violate any of the various criminal prohibitions discussed in Part II. We believe that necessity or self-defense could provide defenses to a prosecution. (p. 2)

Jurisdiction

So, for example, a federal, non-military officer who is conducting interrogations in a foreign location, one that is not on a permanent U.S. military base or diplomatic establishment, would not be subject to the federal criminal laws applicable in the special maritime and territorial jurisdiction. (p. 21)

Definition of torture

Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture “severe pain” must rise to a similarly high level - the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or selious impairment of body functions. (p. 39)

Section 2340’s definition of torture must be read as a sum of these component parts. […] Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. In addition, these acts must cause long-term mental harm. Indeed, this view of the criminal act of torture is consistent with the term’s common meaning. Torture is generally understood to involve “intense pain” or “excruciating pain,” or put another way, “extreme anguish of body or mind.” […] In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts. (p. 44-45)

Mental harm

Not only must the mental harm be prolonged to amount to severe mental pain and suffering, but also it must be caused by or result from one of the acts listed in the statute. (p. 40)

A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture. […] A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute. Thus,if a defendant has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience. (p. 40-41)

Use of drugs

Thus, the pairing of mind-altering substances with procedures calculated to disrupt profoundly the senses or personality and the use of “other” to modify “procedures” shows that the use of such substances must also cause a profound disruption of the senses or personality. For drugs or procedures to rise to the level of “disrupt[ing] profoundly the senses or personality,” they must produce an extreme effect. And by requiring that they be “calculated” to produce such an effect, the statute requires that the defendant has consciously designed the acts to produce such an effect. (p. 42)