Wednesday, August 26, 2009

Did convicting John Yoo just get a little easier?

Possibly, judging by two tidbits from Monday's torture-doc dump.

Emptywheel notes that the docs point to "a CIA document on the 'Legal Principles' on torture that included legal justifications that had not been in any of the August 1, 2002 OLC memos authorizing torture." The IG report describes it:
OGC continued to consult with DoJ as the CTC Interrogation Program and the use of EITs expanded beyond the interrogation of Abu Zubaydah. This resulted in the production of an undated and unsigned document entitled, "Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida Personnel." According to OGC, this analysis was fully coordinated with and drafted in substantial part by OLC. In addition to reaffirming the previous conclusions regarding the torture statute, the analysis concludes that the federal War Crimes statute, 18 U.S.C. 2441, does not apply to Al-Qa'ida "Because members of that-group are not entitled to prisoner of war status. The analysis adds that "the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war."
One version of this document is here; another, here (via, again, Emptywheel).

Tidbit # 1: OLC's involvement in the document, contrary to OGC's representation, seems to have been confined to the kibbitzing of one John Yoo. Jack Goldsmith wrote the IG to dissent from that portion of the report, and said quite bluntly:
OLC also believes that the status of the bullet points was made clear at a meeting on June 17, 2003 soon after the Deputy Assistant Attorney General with whom OGC had consulted on the bullet points had departed from the Department of Justice.
So Yoo was not, here, acting formally on behalf of OLC. Rather, he was acting as part of the "torture team" -- the inner circle doing its best to make torture happen.

That becomes even more clear from Tidbit # 2 (Smintheus, via 1st Emptywheel link above). The bolded portion in that quote from the Legal Principles, above? Total moonshine:
The UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment says no such thing. The OLC/OGC lawyers evidently were insinuating that the Convention drew a very major distinction between the prohibitions against torture on the one hand, and against cruel, inhuman, or degrading treatment on the other. Article 2 of the Convention states explicitly that there are no circumstances that may be used to justify torture:

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.

It is true that the Convention does not repeat the Article 2 statement when it later discusses "cruel, inhuman, or degrading treatment". However that discussion (in Article 16) is extremely brief and to the point: that governments should prevent 'cruel etc. treatment' as they do torture and should give its victims the same legal recourse as victims of torture. There is no implication whatsoever in the Convention that "exigent circumstances" permit the use of cruel, inhuman, or degrading treatment.

Indeed, the US wrote the following to the UN Committee against Torture ten years ago regarding its implementation of the Convention (Report of the United States to the UN Committee against Torture, October 15, 1999, UN Doc. CAT/C/28/Add.5, February 9, 2000, para. 6):

No exceptional circumstances may be invoked as a justification of torture. US law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.

So, when do the torture memos written by John Yoo and friends rise beyond the level of bad lawyering and into the much shadier territory of deliberate falsification for the purpose of facilitating, enabling, or encouraging torture? Because at that point I'd think even the timid Eric Holder's Justice Department would be forced to prosecute them.
From his mouth to God's ears, my friends.

... Andrew Sullivan, apparently paying a visit to his own blog, reminds us what Yoo's legal work resulted in:
Here's what the "CIA pros" did to prisoners (the non-CIA pros improvised the president's directive to torture and abuse prisoners in very similar ways): stress positions, nudity, hooding, sensory deprivation, sleep deprivation, long time standing, beatings, hypothermia, and walling. They key thing, according to the CIA, is to enhance "the potential dread a high-value detainee might have of US custody". Notice the shift from the standards of the past. In the past, the US was known for being a country whose soldiers would never mistreat prisoners; now, the US wants the world to know that US custody is something to be dreaded. * * *

John McCain will remember these techniques and variants of them from his time in the Hanoi Hilton. If this is not torture, then torture does not exist. And if this is America, and there is no accountability for these war crimes, then core American values have ceased to exist as well.
But please, let's look forward.

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