Monday, February 20, 2006

Torture, Memos, and Fig Leaves

Jane Mayer of The New Yorker has published an excellent article on the Administration’s attempts to thwart critics of its use of what can only be called torture on detainees in the War on Terrorism. It focuses in part on the experiences of Navy General Counsel Alberto Mora in trying to end such practices. The article is long and it is worth reading in its entirety. Following are a few excerpts I found particularly interesting in relation to the topics we discuss on this blog.

First up is an excerpt concerning the Yoo “Torture Memo”:

"The memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority," Mora wrote in his account. Yoo's opinion didn't mention the most important legal precedent defining the balance of power between Congress and the President during wartime, Youngstown Sheet & Tube Company v. Sawyer. In that 1952 case, the Supreme Court stopped President Truman from forcing the steel worker's union, which had declared a strike, to continue producing steel needed in the Korean War. The Court upheld congressional labor laws protecting the right to strike, and ruled that the President's war powers were at their weakest when they were challenging areas in which Congress had passed legislation. Torture, Mora reasoned, had been similarly regulated by Congress through treaties it had ratified.

In an e-mail response to questions this month, Yoo, who is now back at Berkeley, defended his opinion. "The war on terrorism makes Youngstown more complicated," he said. "The majority opinion explicitly said it was not considering the President's powers as Commander-in-Chief in the theater of combat. The difficulty for Youngstown created by the 9/11 attacks is that the theater of combat now includes parts of the domestic United States." He also argued that Congress had ceded power to the President in its authorization of military force against the perpetrators of the September 11th attacks…

A little later, the article recounts that:

On February 6th, Mora invited Yoo to his office, in the Pentagon, to discuss the opinion. Mora asked him, "Are you saying the President has the authority to order torture?"

"Yes," Yoo replied.

"I don't think so," Mora said.

"I'm not talking policy," Yoo said. "I'm just talking about the law."

Fast forward to a few months ago. By now, Yoo’s memo has been repudiated. But then:

… Mora attended a meeting in Rumsfeld's private conference room at the Pentagon, called by Gordon England, the Deputy Defense Secretary, to discuss a proposed new directive defining the military's detention policy. The civilian Secretaries of the Army, the Air Force, and the Navy were present, along with the highest-ranking officers of each service, and some half-dozen military lawyers. Matthew Waxman, the deputy assistant secretary of defense for detainee affairs, had proposed making it official Pentagon policy to treat detainees in accordance with Common Article Three of the Geneva conventions, which bars cruel, inhumane, and degrading treatment, as well as outrages against human dignity. Going around the huge wooden conference table, where the officials sat in double rows, England asked for a consensus on whether the Pentagon should support Waxman's proposal.

This standard had been in effect for fifty years, and all members of the U.S. armed services were trained to follow it. One by one, the military officers argued for returning the U.S. to what they called the high ground. But two people opposed it. One was Stephen Cambone, the under-secretary of defense for intelligence; the other was Haynes. They argued that the articulated standard would limit America's "flexibility." It also might expose Administration officials to charges of war crimes: if Common Article Three became the standard for treatment, then it might become a crime to violate it. Their opposition was enough to scuttle the proposal.

In exasperation, according to another participant, Mora said that whether the Pentagon enshrined it as official policy or not, the Geneva conventions were already written into both U.S. and international law. Any grave breach of them, at home or abroad, was classified as a war crime. To emphasize his position, he took out a copy of the text of U.S. Code 18.2441, the War Crimes Act, which forbids the violation of Common Article Three, and read from it. The point, Mora told me, was that "it's a statute. It exists-we're not free to disregard it. We're bound by it. It's been adopted by the Congress. And we're not the only interpreters of it. Other nations could have U.S. officials arrested."

Not long afterward, Waxman was summoned to a meeting at the White House with David Addington. Waxman declined to comment on the exchange, but, according to the Times, Addington berated him for arguing that the Geneva conventions should set the standard for detainee treatment. The U.S. needed maximum flexibility, Addington said. Since then, efforts to clarify U.S. detention policy have languished. In December, Waxman left the Pentagon for the State Department.

(By the way, Cambone is the same person who’s notes from 9/11 were recently released in a FOIA request.)

This is just scratching the surface of this article; it is well worth reading the complete text.

We as Americans will constantly argue over the proper balance between law and policy, between national security and individual rights. But for this to be an honest discussion in pursuit of balance, then the idea of law has to actually mean something. If law and legal opinions are just a fig leaf, then we've lost more than just our innocence.

9 Comments:

Blogger randomopinion said...

But, but, but … this can’t be! John Yoo is a patriot, and this New Yorker piece portrays him almost as a mafia lawyer. Prof. Ku, what are you waiting for to chastise all these un-American, legally inept liars, including your fellow blogger Chris Borgen? If you don’t do so you obviously won’t be worthy of sitting in the same room with one of America’s “leading scholars” in the field of foreign relations law, as you like to describe the author of those brilliant OLC memos. The clock is ticking – your glorious seminar at the American Enterprise Institute begins in a few hours.

2/21/2006 5:09 AM  
Blogger Chris Borgen said...

Alright, no inciting fights among the OJ bloggers. We do a good enough job picking our own fights.

2/22/2006 1:07 AM  
Blogger Thomas said...

"foreign relations law"???

2/22/2006 3:17 AM  
Blogger randomopinion said...

thomas:

Just quoting Prof. Ku:

http://lawofnations.blogspot.com/2006/02/see-goldsmith-scalia-yoo-et-al.html#comments

Besides, if you Google it you'll see its a widely accepted term in US academia.

2/22/2006 4:05 AM  
Blogger Viscerapulsatum said...

There is also this curiously obscure publication entitled "Restatement of the Law Third, Foreign Relations Law of the United States."

2/22/2006 2:43 PM  
Blogger Nautilus said...

Dear Julian, I want to express my gratitude to you, Peggy, Chris and your guest bloggers for your thoughtful commentary over the life of opinio juris. I've always found your contributions to be thoughtful, respectful and professional, and more than once your insights have prompted me to reconsider some of my positions. Please don't let an occasional uncivil and intemperate remark in the comments section discourage you from this valuable enterprise.

2/23/2006 9:35 AM  
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