UC Berkeley Prof OutlinesTorture Legalities
- View SourceFormer Justice Department lawyer John C. Yoo now teaches law at the
University of California at Berkeley.
Permissible Assaults Cited in Graphic Detail
Drugging Detainees Is Among Techniques
By Dan Eggen
Washington Post Staff Writer
Sunday, April 6, 2008; Page A03
Thirty pages into a memorandum discussing the legal boundaries of
military interrogations in 2003, senior Justice Department lawyer John
C. Yoo tackled a question not often asked by American policymakers:
Could the president, if he desired, have a prisoner's eyes poked out?
Or, for that matter, could he have "scalding water, corrosive acid or
caustic substance" thrown on a prisoner? How about slitting an ear,
nose or lip, or disabling a tongue or limb? What about biting?
These assaults are all mentioned in a U.S. law prohibiting maiming,
which Yoo parsed as he clarified the legal outer limits of what could
be done to terrorism suspects as detained by U.S. authorities. The
specific prohibitions, he said, depended on the circumstances or which
"body part the statute specifies."
But none of that matters in a time of war, Yoo also said, because
federal laws prohibiting assault, maiming and other crimes by military
interrogators are trumped by the president's ultimate authority as
commander in chief.
The dry discussion of U.S. maiming statutes is just one in a series of
graphic, extraordinary passages in Yoo's 81-page memo, which was
declassified this past week. No maiming is known to have occurred in
U.S. interrogations, and the Justice Department disavowed the document
without public notice nine months after it was written.
In the sober language of footnotes, case citations and judicial
rulings, the memo explores a wide range of unsavory topics, from the
use of mind-altering drugs on captives to the legality of forcing
prisoners to squat on their toes in a "frog crouch." It repeats an
assertion in another controversial Yoo memo that an interrogation
tactic cannot be considered torture unless it would result in "death,
organ failure or serious impairment of bodily functions."
Yoo, who is now a law professor at the University of California at
Berkeley also uses footnotes to effectively dismiss the Fourth and
Fifth amendments to the Constitution, arguing that protections against
unreasonable search and seizure and guarantees of due process either
do not apply or are irrelevant in a time of war. He frequently cites
his previous legal opinions to bolster his case.
Written opinions by the Office of Legal Counsel have the force of law
within the government because its staff is assigned to interpret the
meaning of statutory or constitutional language. Yoo's 2003 memo has
evoked strong criticism from legal academics, human rights advocates
and military-law experts, who say that he was wrong on basic matters
of constitutional law and went too far in authorizing harsh and
coercive interrogation tactics by the Defense Department.
"Having 81 pages of legal analysis with its footnotes and
respectable-sounding language makes the reader lose sight of what this
is all about," said Dawn Johnsen, an OLC chief during the Clinton
administration who is now a law professor at Indiana University
"He is saying that poking people's eyes out and pouring acid on them
is beyond Congress's ability to limit a president. It is an
Yoo defends the memo as a "near boilerplate" argument in favor of
presidential prerogatives, and says its fundamental assertions differ
little from those made by previous presidents of both parties. In
comments to The Washington Post and other news organizations, Yoo has
also criticized the Justice Department for issuing new legal opinions
that do not include detailed discussions of specific interrogation
tactics, which he views as crucial to defining the boundaries of what
"You have to draw the line," Yoo said in an Esquire magazine
interview posted online this past week. "What the government is doing
is unpleasant. It's the use of violence. I don't disagree with that.
But I also think part of the job unfortunately of being a lawyer
sometimes is you have to draw those lines. I think I could have
written it in a much more -- we could have written it in a much more
palatable way, but it would have been vague."
The 2003 memo includes long discussions of the relative illegality of
a wide variety of coercive interrogation tactics, including a British
technique in which prisoners are forced to stand in a spread-eagle
position against a wall and an Israeli technique, called the Shabach,
in which a suspect is hooded, strapped to a chair and subjected to
powerfully loud music.
Various courts had declared both tactics to be inhumane, but not
torture, Yoo noted. This meant that they were illegal under a
provision of the Geneva Conventions that the administration said had
no relevance to unlawful combatants in its custody.
In another passage, discussing the bounds of Eighth Amendment
protections involving confinement conditions, Yoo concluded that "the
clothing of a detainee could also be taken away for a period of time
without necessarily depriving him of a basic human need." Yoo cited
the need to prove "malice or sadism" on the part of an interrogator
before he or she could be prosecuted.
The interrogation memo was considered a binding opinion for nine
months until December 2003, when OLC chief Jack Goldsmith told the
Defense Department to ignore the document's analysis.
In his 2007 book "The Terror Presidency," Goldsmith, who now teaches
law at Harvard University said that some of the memos written by Yoo
and his colleagues from 2001 to 2003 were "deeply flawed: sloppily
reasoned, overbroad, and incautious in asserting extraordinary
constitutional authorities on behalf of the President."
Douglas W. Kmiec, a Pepperdine University law professor who served as
constitutional legal counsel for Presidents Ronald Reagan and George
H.W. said Yoo can be faulted "for not writing more narrowly." It is
often better to "brush in hazy gray" rather than "spray paint in black
and white," Kmiec said.
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