The concept of torture came to the fore in the American War on Terror beginning roughly around the leaked allegations of abuse at the Abu Ghraib facility in Iraq. Eleven service members were convicted of war crimes. No top commanders were convicted, although some were reprimanded. The revelations about Abu Ghraib sparked a review of American detention policies, which revealed a number of unsettling truths.
Which leads us to the Torture Memos, the infamous series of memos from 2002 authored by John Yoo (now a law professor at Stanford) and signed by Jay Bybee (now a sitting U.S. judge). The memos held that neither domestic, nor international law could restrict or limit the President’s Commander in Chief powers during a time of war. I think that is why we constantly heard the refrain of “we are at war” – it is important because that is when power of the Presidency is at its zenith. The memos argued that those acting under President’s lawful authority could not be held responsible for any potential violations of international law, provided that the President determined that such actions were required. Essentially, the President could do whatever he wanted, and there would be no accountability. The memos also went on to define torture in a way that severely limited what would be prohibited by international law. Yoo defined torture as an act that required severe pain equivalent to organ failure or death. Most international legal scholars agree that such an interpretation was only tangentially based on international legal standards. Yoo also noted that the definition of torture under the Senate’s ratification of the Convention Against Torture included a “specific intent” to commit an act. As a result, the memos argued that if the intent were to get information, not just to torture, then it would be permitted under the Congressional understanding (even if at odds with Torture Convention). The memo also offered various defences that would be available to defend against claims of torture. First, Yoo argued that to the extent the use of enhanced interrogation techniques could be used to prevent the loss of substantial life, then it may be justified as necessary, and thus the perpetrators could escape punishment. According to Yoo, there were no limitations as to how far one could go – intentional homicide would be acceptable provided that you were saving more lives. This position has been specifically repudiated by the Committee Against Torture (which is the monitoring agency under Convention Against Torture), which specifically stated that no act could ever justify torture.
This memo was kept secret for years, and when the opinion came to light in 2004, it was quickly denounced and rejected by the administration. The administration’s view was expressed in a new series of memos in 2004. However, by 2004, most of the damage had been done, as the U.S. had been employing enhanced interrogation techniques against detainees since 2001. PBS’s Frontline did a fascinating documentary on this topic entitled “The Torture Question”which I have linked to. It is about 90 minutes or so, but it is time well spent if you are interested.
One of the reasons that the Torture Memos were so significant is the way that they potentially affect the criminal liability of the people who were performing the acts. Normally, an individual military official or a member of the CIA that tortured someone would have potential criminal liability, as would his or her superiors. However, the Torture Memos have served as a “ golden shield.” The argument is as follows: a person cannot be held criminally liable if he has been told that the highest law enforcement officials in the land, the Department of Justice (remember the OLC is an office in the Department of Justice), that the actions are not criminal. Indeed, I have some sympathy for this view. If any of you have friends in the military they will tell you that one of the first things they are told is that they are not to follow unlawful orders – however, why would a soldier be expected to contradict the determination of the Department of Justice that such actions are not unlawful? In such circumstances it would arguably be unfair to hold the soldiers responsible. Indeed, former Attorney General Eric Holder came to the conclusion that those following the directives of the OLC memos would not be criminally prosecuted.
Do you think that individuals acting under the authority of these memos should be forgiven? Or is basic human decency such that the soldier and operative employing these techniques should have realised that they were wrong and constituted torture? Conversely, do you believe that the people who authored the memos should be held criminally liable? As they did not commit they acts at issue, under what theory of criminal liability could they be held liable?