NLG WHITE PAPER ON THE LAW OF TORTURE

WHITE PAPER ON THE LAW OF TORTURE AND HOLDING ACCOUNTABLE THOSE WHO ARE COMPLICIT IN APPROVING TORTURE

OF PERSONS IN U.S. CUSTODY

 

National Lawyers Guild

International Association of Democratic Lawyers

 

This paper provides the background to the legal issues underpinning the call by the National Lawyers Guild (NLG) to prosecute and dismiss from their jobs people like then Deputy Assistant Attorney General John Choon Yoo,^[1] then Assistant Attorney General Jay Bybee^[2] and others who participated in the drafting of memoranda claimed to be based on sound legal precedent that purported to authorize the commitment of acts of torture or other cruel, inhuman or degrading treatment^[3] on behalf of the U.S. government. The memoranda were written at the request of high ranking U.S. officials in order to insulate them from the risk of future prosecution for subjecting detainees in U.S. custody to torture. By logical extension, this paper explains why all those who approved the use of torture and committed it--whether ordering it, approving it or giving purported legal advice to justify it--are subject to prosecution under international and U.S. domestic law.

 

The prohibition of torture is a jus cogens norm (these are principles of international law so fundamental that no nation may ignore them or attempt to contract out of them through treaties). The United States has consistently prohibited the use of torture through its Constitution, laws, executive statements and judicial decisions and by ratifying international treaties that prohibit it. The prohibition against torture applies to all persons in U.S. custody in times of peace, armed conflict, or state of emergency. In other words, the prohibition is absolute. However, the legal memoranda drafted by government lawyers purposely or recklessly misconstrued and/or ignored jus cogens, customary international law, and various U.S. treaty obligations in order to justify the unjustifiable, claiming that clearly unlawful interrogation "techniques" were lawful.

I. THE PROHIBITION AGAINST TORTURE IS A JUS COGENS NORM.

The prohibition against torture is a jus cogens norm.^[4] Jus cogens are defined as norms "accepted and recognized by the international community of states as a whole ... from which no derogation is permitted..."^[5] In international criminal law, the legal duties that arise in connection with crimes designated as violations of jus cogens norms include the duty to prosecute or extradite, the non-applicability of statutes of limitations, the non-applicability of any immunities up to and including those enjoyed by Heads of State, the non-applicability of the defense of "obedience to superior orders" and universal jurisdiction over perpetrators of such crimes. Other jus cogens norms include the prohibitions against slavery, genocide, and wars of aggression. Jus cogens norms, like customary international law norms, are legally binding. No affirmative executive act may undercut the force of these prohibitions nor may a legislature legalize crimes designated as violating jus cogens norms or immunizing from prosecution those responsible. Jus cogens norms differ from norms which have attained the status of customary international law by dint of their universal and non-derogable character and the fact that jus cogens norms are peremptory, that is, they trump any other inconsistent international law.

 

While legal scholars often differ as to what specific acts can be defined as being subject to jus cogens norms, it is beyond dispute that the prohibition against torture has attained that status.^[6] The right to be free from torture and other cruel and inhuman treatment was recognized in Article 5 of the Universal Declaration of Human Rights (1948). It is contained in Article 7 of the International Covenant on Civil and Political Rights and Article 5(2) of the American Convention on Human Rights. Torture is also outlawed under the Rome Statute which created the International Criminal Court (ICC). The U.S. Army Field Manual 34-52 makes clear that techniques of interrogation are to be established under the rules laid out by The Hague and Geneva Conventions. Field Manual 34-52 is unambiguous in its prohibition on the use of torture and any other force in interrogation of prisoners.

 

Article 17 of the 1949 Geneva Convention III prohibits physical or mental torture and any other coercive action against prisoners of war, and Article 130 classifies violation of Article 17 as a grave breach of the Geneva Conventions. The Fourth Geneva Convention prohibits an occupying power from torturing protected persons (Article 32) or engaging in all other "measures of brutality" (Article 283). Common Article 3 (that is, Article 3 in each of the conventions) prohibits torture as well as the separate crimes of inhuman, humiliating and degrading treatment against those who are taking no active part in hostilities, members of armed forces who have laid down their arms, or those who are hors de combat.

The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention or CAT) codified the prohibitions against torture into specific rules. The Convention "prohibits torture and other acts of cruel, inhuman, or degrading treatment or punishment." It criminalizes torture and seeks to end impunity for any torturer by denying him all possible refuge. The Convention is categorical: "No exceptional circumstances whatsoever, whether a state of war, or a threat or war, internal political instability or any other public emergency, may be invoked as a justification for torture."

 

The prohibition against torture has attained jus cogens status. This means we must examine the actions of Yoo and the others who sought to provide legal cover for acts in violation of the prohibition through a lens which acknowledges that they violated a norm which the world has universally declared to be part of the highest and most compelling law. Because it is a jus cogens norm, no world leader has the right to resort to torture, nor may a legislature attempt to legalize it, nor may an official of the government use it. Indeed, if the rule of law is to have real meaning, it demands severe consequences for anyone who transgresses.

 

II.  THE CONVENTION AGAINST TORTURE, THE TORTURE STATUTE,

            AND THE WAR CRIMES ACT

 

As noted above, one of the processes which helped confer jus cogens status on torture was the ratification by the U.S. of the International Covenant on Civil and Political Rights (ICCPR)^[7] and the Torture Convention.^[8] The U.N. General Assembly adopted the CAT in 1984 to strengthen existing prohibitions against torture and other cruel, inhuman, or degrading treatment.[9] On October 21, 1994, the United States ratified Convention, which expressly prohibits torture under all circumstances. The 1999 decision by the House of Lords to extradite Augusto Pinochet for prosecution for promoting and condoning acts of torture committed during his regime was based in part on the existence of the Convention and its contribution to the recognition of torture as a jus cogens norm.^[10]

                                   

Torture is defined in Article 1 of the Convention as:

 

1. Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

 

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

 

            Under Article 2:

 

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

 

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

 

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

 

As a ratified convention, the CAT is a treaty which, through Article VI, Section 2 of the United States Constitution (Supremacy clause), is "the Supreme Law of the Land" in domestic U.S. law. Pursuant to the dictates of the CAT, Congress criminalized torture for actions outside the United States.^[11] The language of the Torture Statute tracks to a large degree the language of the Torture Convention and punishes conspiracy to commit torture as well as torture itself. While the U.S. included various "understandings^[12] along with its ratification of the Convention, international law does not permit such "understandings" to undercut the force and language of the Convention.^[13] While the Torture Statute covers acts committed outside the United States (as opposed to the CAT, which is not site specific as to the place the torture occurs), the opinions sought from Yoo and the others in 2002 address actions taken by U.S. officials outside the United States, in the various "black sites" as well as bases in Afghanistan and Guantánamo. At that time, the administration argued that Guantánamo was outside of the United States and beyond the reach of any U.S. court.^[14]

 

III. THE UNITED STATES PROHIBITS TORTURE AND

      OTHER CRUEL, INHUMAN, OR DEGRADING TREATMENT

 

The U.S. Court of Appeals for the Second Circuit declared more than 25 years ago that the prohibition against torture is universal, obligatory, specific, and definable.^[15] Since then, every U.S. circuit court has held that torture violates universal and well-established customary international law, with the Eleventh Circuit finding that official torture is now prohibited by the law of nations, including U.S. law.^[16]

 

In 2004, Congress declared that "the Constitution, laws, and treaties of the United States and the applicable guidance and regulations of the United States Government prohibit the torture or cruel, inhuman, or degrading treatment of foreign prisoners held in custody of the United States" here or abroad. Congress also affirmed the requirement that "no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States." Congress reiterated "the policy of the United States to . . . investigate and prosecute, as appropriate, all alleged instances of unlawful treatment of detainees in a manner consistent with the international obligations, laws, or policies of the United States."^[17]

 

IV. BUSH'S ORDER AND THE TORTURE MEMOS

 

"A common plan to violate customary and treaty-based international law concerning the treatment and interrogation of so-called terrorist and enemy combatant detainees and their supporters captured during the U.S. war in Afghanistan emerged within the Bush administration in 2002."^[18]      

 

On February 7, 2002, President Bush announced that Geneva's Common Article 3 did not apply to alleged Taliban and Al Qaeda members. Bush said, however, "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." But the Torture Convention and jus cogens absolutely prohibit torture in all circumstances.

 

In the summer of 2002, the Pentagon sought advice on whether the army was bound by the Field Manual in interrogating prisoners at Guantánamo. An advisory memo written by Colonel Diane Beaver, a U.S. Army lawyer, tried to find a way around the Field Manual constraints on interrogation.^[19] Before issuing her opinion, Colonel Beaver was visited by lawyers from Washington D.C. including David Addington, Jim Haynes, and others who made it clear that those at the top of the administration sought an outcome which would permit deviation from the strictures of the field manual.[20]

 

Her advisory opinion concluded that international obligations are irrelevant and that because the detainees were not prisoners of war the Geneva Conventions did not apply. Before Colonel Beaver issued her opinion, the Justice Department was providing advice on whether interrogation techniques which were assumed to be legal under U.S. law could nonetheless expose the U.S. to prosecution at the ICC^[21] or violate the CAT.^[22]

 

There are many lawyers in the Office of Legal Counsel, the Justice Department and elsewhere cognizant of the legal - indeed, constitutional - obligations the U.S. has under ratified treaties. The administration, however, turned to political appointees, including then Deputy Assistant Attorney General John Yoo and then Assistant Attorney General Jay Bybee for these opinions.

On January 9, 2002, Yoo submitted a memorandum opinion titled "Application of Treaties and Laws to al Qaeda and Taliban Detainees." Co-authored with Special Counsel Robert J. Delahunty, the memo purported to address "the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan."

 

This memo argued that the president was not bound by international laws in the war on terror. It stated that "any customary international law of armed conflict in no way binds, as a legal matter, the president or the U.S. Armed Forces concerning the detention or trial of members of al-Qaeda and the Taliban." The memo found it proper to deny the protections of international laws to detainees and to exempt from liability those who denied such protections.

 

Yoo also authored a memorandum opinion dated August 1, 2002, titled "Standards of Conduct for Interrogation under 18 U.S.C. ss. 2340-2340A." This opinion was addressed to Alberto Gonzales from Jay Bybee, but was in fact drafted by Yoo.

 

In the August 1, 2002 memo, Yoo/Bybee changed the definition of torture contained in U.S. law and the CAT, limiting it to those acts inflicting pain of equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. This definition is much narrower than our laws provide in the CAT and the Torture Statute.

 

Recently, a March 14, 2003 Yoo memorandum opinion has surfaced titled "Military Interrogation of Alien Unlawful Combatants Held Outside the United States." This 81-page memo again reiterates that the president is not bound by federal laws. "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." Yoo states that the president is not bound by laws that prohibit torture, assault, maiming, stalking, and war crimes. The opinion applies the restrictions imposed by treaties against torture to circumstances leading to death.

 

The memo does not recognize the prohibition of torture as a jus cogens norm, but wrongly declares that customary international law is not federal law and that the president is free to override it at his discretion. Yet more than a century ago, in Paquete Habana, the Supreme Court held that customary international law is part of the laws of the United States that must be ascertained and applied by the judiciary.^[23] In 1984, Justice O'Connor wrote that power "delegated by Congress to the Executive Branch" and a relevant congressional-Executive "arrangement" must not be "exercised in a manner inconsistent with . . . international law."^[24]

 

And finally, the memo suggests several defenses (military necessity and self defense) for those brought up on criminal charges for violating laws during interrogations, notwithstanding the jus cogens norm, the Geneva Conventions' clear command that military necessity does not justify treatment Geneva prohibits, and CAT's absolute prohibition on torture.

V.  THE AUGUST 2002 TORTURE MEMO IS WITHDRAWN

     

Many scholars have opined on the legal deficiencies of Yoo's and others' "torture memos."^[25] Referring to the discussion of jus cogens above, there is no legal basis for the claim that the president is not bound by the law against torture. No one, not a lawyer or Congress, has the authority to re-write the definition of torture contained in the CAT to allow for interrogation techniques which clearly would amount to torture under the CAT's definition. The "war on terror" does not give the executive branch the ability to disregard the Geneva Conventions and commit war crimes.^[26]

After the exposure of the atrocities at Abu Ghraib, and the existence of the August 1, 2002 memo was revealed, the Department of Justice knew that the Yoo memos could not be legally defended. The August 2002 memorandum opinion was withdrawn as of June 1, 2004. A new opinion was written. This memo, authored by Daniel Levin, Acting Assistant Attorney General Office of Legal Counsel, is dated December 30, 2004. It specifically rejects Yoo's definition of torture, stating: "Under the language adopted by Congress in sections 2340-2340A, to constitute 'torture,' the conduct in question must have been 'specifically intended to inflict severe physical or mental pain or suffering.'" The memo separately considers the components of this key phrase: (1) the meaning of "severe;"^[27] (2) the meaning of "severe physical pain or suffering;" (3) the meaning of "severe mental pain or suffering;" and (4) the meaning of "specifically intended."

 

With respect to "specific intent" to torture, the Levin memo does concur with LaFave, Substantive Criminal Law, § 5.2(a), at 341 (footnote omitted) who states: "With crimes which require that the defendant intentionally cause a specific result, what is meant by an "intention" to cause that result? Although the theorists have not always been in agreement . . . , the traditional view is that a person who acts . . . intends a result of his act . . . under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.

 

VI. HAMDAN V. RUMSFELD

 

On June 29, 2006 the U.S. Supreme Court ruled in Hamdan v. Rumsfeld,^[28] that Guantánamo detainees were entitled to the protections provided under Geneva's Common Article 3. The Court invoked the legal precedents that had been sidestepped by Yoo and others. Justice Anthony Kennedy, joining the majority, pointedly observed that "violations of Common Article 3 are considered 'war crimes.'"

 

Four months after Hamdan, President Bush signed into law the Military Commissions Act^[29] which was passed to address the restrictions imposed on the administration by Hamdan, and also attempted to create a new legal defense against lawsuits for misconduct arising from the "detention and interrogation of aliens" between September 11, 2001 and December 30, 2005.^[30]

VII.      CAN ANY OF THOSE WHO WERE INVOLVED IN ANY WAY IN DECIDING TO TORTURE AVOID PROSECUTION?

 

Professor Philippe Sands, an eminent international lawyer, in his book, Lawless World, stated: "What do you do as an international lawyer when your client asks you to advise on the international rules prohibiting torture? Do you start with the rules and ask how an international court - or your allies - might address the issue and reach a balanced conclusion? Or do you focus on the narrower issues of the relevance, applicability, and enforceability of the international rules in the national context, and reach a conclusion that you know - if you ask yourself the question - no international court would accept? Let me put it another way. Do you advise, or do you provide legal cover?"^[31]

 

The National Lawyers Guild agrees with Sands's conclusion that giving political cover makes a lawyer complicit in the decision to torture.^[32] It is the Guild's view that there can be no two opinions on whether those who are involved in the decision to torture must be held accountable, both under the War Crimes Act and the Torture Statute. 18 U.S.C. §2340A specifically applies to those who conspire to commit torture. Yoo and other lawyers who were involved in providing the opinions used to justify the use of torture are just as complicit as those who authorized and carried out the torture itself and must be held equally accountable.

 

The Yoo/Bybee memos were either prospective, for the purpose of advising the executive of the limits (or lack thereof) of its authority, or retrospective, for the purpose of addressing already approved of actions. Although they purport to be the former, it now appears they were written after the program of what the Bush administration euphemistically refers to as "enhanced interrogation techniques" began. Regardless, there are only two conclusions one can draw from the memos. The first is that their purpose was not to give the client (assuming for the sake of argument that the Justice Department's client is the president and not the people) a full understanding of the legal issues, but to give legal cover to an already decided upon, potentially criminal, policy. The second is that the drafters did their best to present all possible conclusions and consequences, in which case the advice given fell so far below the requisite standard of care as to constitute legal malpractice. No one, and certainly not the NLG, has accused Yoo of being that incompetent.

 

Yoo, Bybee and others counseled that there were no laws which protected from torture the detainees held at black sites, in prisons in Afghanistan or the Guantánamo concentration camp. They defined torture as only those actions which caused sufficient pain as to cause organ failure and/or death. These memos "green lighted" torture and many detainees were subjected to these techniques including, it has been estimated, more than 100 who died at the hands of their captors. They knew, or should have known, that a direct result of their counsel would be the use of interrogation techniques against certain allegedly recalcitrant detainees which would amount to torture. Or they knew it was already going on and they were doing their best to justify it. Regardless, they are part of the conspiracy to commit torture. The "torture memos" written by the DOJ lawyers, and "presidential and other authorizations, directives, and findings substantially facilitated the effectuation of a common, unifying plan to use coercive interrogation and that use of authorized coercive interrogation tactics were either known or substantially foreseeable consequences."^[33] John Yoo admitted that the coercive interrogation "policies were part of a common, unifying approach to the war on terrorism."^[34]

 

Some have criticized the National Lawyers Guild for targeting lawyers who were "merely fulfilling their duty by giving advice." It should be emphasized that the Guild is not only targeting the lawyers. It has called for the impeachment of the president and vice president and has continually called for prosecution of all those (not just the few lower-ranking enlisted people who deserved punishment but who have been scapegoats for administration policy) responsible for these crimes. However, the lawyers cannot be permitted to hide under the cover of fulfilling their professional responsibilities.

           

Nor does the attorney-client privilege extend to keeping silent about planned criminal action. Even conceding Yoo and his co-conspirators actually believed their position was correct, no competent lawyer could have believed it unassailable. Giving real advice necessarily meant advising of the risks as well as the arguments favoring torture.^[35] And, it should be noted, their incredibly narrow definition of torture completely ignored the prohibition against other cruel, inhuman or degrading treatment or punishment, which would be obvious to anyone who chose to read even the full name of the CAT. It is impossible to believe this was the result of incompetence, leaving only the conclusion that they were willing participants in a conspiracy to violate a jus cogens norm. Professor Yoo and Judge Bybee, as well as the other lawyers who provided cover for illegal torture, are not protected by their right to free speech or academic freedom. They were not expressing their unsupportable legal opinions in scholarly journals or in classrooms. They were asked to justify what the administration wanted to do and they willingly did it, knowing the inevitable results.

 

The prosecution of Josef Altstoetter and fifteen other lawyers who were tried in Germany before a U.S. military tribunal - many of whom were convicted of committing international crimes through the performance of their legal functions established the principle that lawyers and judges in Nazi Germany bore a particular responsibility for the regime's crimes. But it is not just that case that should expose Yoo and his cohorts to liability for his advice. Their memos were not written for the purpose of advocacy. If they were defending the president in an impeachment case, or before the International Criminal Court, they would be free to argue, however vainly, their novel positions. But they cannot divorce themselves from the consequences of their advice and cannot be permitted immunity or impunity. The loss of their professional status would be a small price to pay for the commission of war crimes.