by John Yoo
So far we have prevented another successful attack on the United States, but some forget how hard that is to accomplish. The point of the 2002 memo was to give clear guidance on the state of the law, not to give the administration political cover, much less paint a pretty picture for a broad range of sensibilities.
It should be clearly understood that neither the August 2002 memo nor the Justice Department advocated or recommended torture or any other interrogation tactics. Rather, OLC addressed this question: What is the meaning of "torture" under the federal criminal laws? What the law forbids and what policy makers choose to do are entirely different things, and analyzing the laws is what the Department of Justice and the OLC exist to do.
What if, as the popular Fox television program 24 recently portrayed, a high-level terrorist leader is caught who knows the location of a nuclear weapon in an American city. Should it be illegal for the President to use harsh interrogation short of torture to elicit this information? In 2004 Senate hearings, even Senator Charles Schumer acknowledged that "very few people in this room or in America...would say that torture should never, ever be used, particularly if thousands of lives are at stake." Senator John McCain, himself the victim of terrible abuses at the hands of the North Vietnamese, in late 2005 sponsored a law extending Congress's prohibition of torture to the much broader category of "cruel, inhuman, and degrading treatment." But even McCain concedes that the President ought to violate his own law if al Qaeda has hidden a nuclear bomb in New York and American intelligence captures one of the plotters. "You do what you have to do," McCain said in the fall of 2005. "But you take responsibility for it. Abraham Lincoln suspended habeas corpus in the Civil War, and FDR violated the Neutrality Acts before World War II."13
Unfortunately, these are no longer hypothetical questions. We do face an enemy that is intent on carrying out surprise attacks on innocent civilians, with WMDs if possible, by using covert cells of operatives hidden within the United States.
Critical moral and policy concerns surround interrogation policy, but first we have to clarify the legal framework, which has been much exaggerated and mistaken. A good example is the opinion of the International Committee for the Red Cross (ICRC), which has not lived up to its responsibilities as a neutral intermediary in wartime, but instead has pushed a political agenda. An ICRC report on Guantanamo Bay criticized interrogation as a "system devised to break the will of the prisoners [and] make them wholly dependent on their interrogators."14 It said that "the construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual, and degrading treatment and a form of torture." It did not say that any particular interrogation method constituted torture, but instead that the whole system of gaining intelligence was cruel, unusual, degrading treatment that amounted to torture. If attempting to gain intelligence by breaking the "will of the prisoners" and making them "wholly dependent on their interrogators" constitutes torture, then virtually all interrogation is torture and illegal, including what goes on in U.S. police stations every day.
A politicized UN followed in the ICRC's footsteps. Its Committee Against Torture (CAT) issued a May 2006 report demanding that the Guantanamo Bay facility be closed.15 This committee, established to monitor compliance with CAT, was "concerned that detainees are held for protracted periods" and lack "legal safeguards" and "judicial assessment of the justification of their detention." It also claimed that detaining al Qaeda without access by the ICRC was a violation of the antitorture treaty. The CAT does not cover the detention of enemy combatants--the laws of war do, and they have long allowed for detention without judicial review. The UN presented the spectacle of some of the world's worst human rights abusers, including China and Russia, advising the American delegation that their treaty interpretations would reign supreme over United States law.
American law prohibits torture. But not all forms of interrogation that go beyond questioning are torture. Physical or mental coercion that does not constitute torture include threats of poor treatment or promises of better treatment or nonharmful physical contact. Solitary confinement is not torture. Marine instructors don't commit torture in boot camp.
In 1994, the United States ratified the CAT, which required the criminalization of torture.16 It also declares that parties "undertake to prevent...other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture."17 Thus, the central international treaty on the subject makes a clear distinction between torture on the one hand, and harsh measures characterized as "cruel, inhuman, or degrading treatment" on the other. CAT required states to criminalize only the former--not the latter.18 The Reagan administration made clear that the treaty did not regulate all forms of mistreatment, which, below the level of torture, would remain the domain of American law. It reported to the Senate: "Rough treatment as generally falls into the category of 'police brutality,' while deplorable, does not amount to 'torture.'"19 And Congress completely agreed.
Congress maintained this distinction in a 1994 law criminalizing torture outside the United States. It defined torture as an "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."20 Congress unquestionably intended its prohibition on torture to be narrow, much narrower than many popular understandings of the word. The alleged torturer must have acted with "specific intent," the highest level of criminal intent known to the law--the difference between premeditated, first-degree murder, and manslaughter.21 If severe physical or mental pain or suffering results, but was unintentional, or unanticipated, or resulted from negligent or perhaps even reckless action, it would not be torture. Further, if someone acts under the good faith belief that his actions do not violate the law, they do not meet the level for specific intent.
Critics scoff that this definition would allow a government agent to get away with torture if he claims to be doing so for good reasons. Perhaps so. However, this has nothing to do with the definition of specific intent. "Good reasons" are defenses to a charge of wrongful action.22 Killing in self-defense is a defense to the charge of murder; it does not eliminate the requirement of an intent to kill. Congress chose to prohibit torture only when the perpetrators intended to do so, not to call everyone who in any way might inflict severe mental or physical pain a torturer.
Congress also only prohibited "severe physical or mental pain or suffering." The ban on torture does not prohibit any pain or suffering, whether physical or mental, only severe acts. Congress did not define "severe." Standard dictionaries define "severe" in the context of pain as something that is "grievous," "extreme," "sharp," and "hard to endure."23 OLC interpreted "severe" as a level of pain "equivalent in intensity to the pain accompanying serious physical injury, such as death, organ failure, or serious impairment of body functions."24 Many critics don't like this definition, preferring that it encompass more.
OLC's first 2002 opinion did not make up this definition out of thin air. It applied a standard technique used to interpret ambiguous phrases in a law. When Congress does not define its terms, courts commonly look in the United States Code for the use of similar language. The only other place where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including "severe pain" where an individual's health is placed "in serious jeopardy," "serious impairment to bodily functions," or "serious dysfunction of any bodily organ or part."25 Obviously, Congress's terminology here was not exactly on point, but it was the closest Congress had come to defining severe pain. It was an illustration of severe pain, not an effort to limit its definition. Assertions in the media that the Bush administration defined torture only as serious organ failure or death are misrepresentations.
By focusing only on this phrase, administration critics imply tha
t the Justice Department limited torture to direct physical abuse. They have claimed that the Justice Department would allow the denial of medical care, or the use of psychotropic drugs, or the playing of Russian roulette, or the threatening of a detainee or their family members with death. This claim was made by partisans who either did not read the 2002 legal opinion or the text of the 1994 antitorture law itself, or are ignoring them both. The law prohibits the infliction of severe mental pain or suffering in so many words, which it more precisely defined as "the prolonged mental harm" caused by four specific acts: (a) the threat or administration of actual physical pain and suffering, (b) the threat or administration of "mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality," (c) the "threat of imminent death," or(d) the threat of inflicting these harms on a third person.26 This definition prohibited certain things, but allowed others. That is the nature of drawing a line. By requiring that the mental harm be "prolonged," Congress prohibited the causing of posttraumatic stress disorder or chronic depression but not the temporary strain of a police interrogation. No Russian roulette--this clearly violates (c)--but threats such as "If you do not cooperate, you will be tried and sentenced to death" or "If you do not talk, you will stay in this prison so long, you will die here" were permissible.27 No psychotropic drugs--this clearly violates (b)--but a much-fabled truth serum that did not cause pain, or even getting an al Qaeda leader mildly drunk, might be legal. These would not "disrupt profoundly" the senses or personality, which we took to mean something more serious in its effects.
Human rights advocates claim that such aggressive interrogation methods violate the ban on torture. Perhaps they have succeeded in convincing public opinion that anything beyond shouted questions is torture, but that isn't the law. Congress made this clear by what it didn't do as much as by what it did. Before the McCain Amendment, Congress opted not to prohibit the broader category of "cruel, inhuman, or degrading treatment or punishment," on the grounds that these words were too vague.28 A European court had suggested that German officials had violated this standard by refusing to recognize a prisoner's sex change.29
Executive branch officials wanted to make sure that the United States did not adopt any international legal obligations that went beyond what American law already required. They suggested, and the Senate adopted, a definition that "cruel, inhuman, or degrading" meant conduct which the Constitution's Fifth, Eighth, or Fourteenth Amendments already prohibited.30 This followed American practice of ratifying human rights treaties so as to require no change in domestic law. Cruel, inhuman, or degrading treatment was prohibited only to the extent it was already prohibited by the Constitution.
Domestic law remained unchanged by the 1994 antitorture law. Within the United States, federal and state law already regulated interrogation, and outside the United States, Congress banned torture, but not interrogation techniques short of it.31 It would have been remarkable for the United States, without much discussion, to have accepted an enormous extension of rights to all foreign citizens in wartime whenever detained by the U.S. government. Even if this were so, this would not have barred coercive interrogation. The Eighth Amendment's ban on cruel and unusual punishments covers everyone, citizen or alien, being dealt with within our criminal justice system, but our law does not extend its privileges (or those of the rest of our Bill of Rights) to enemy aliens outside the United States.32
In all of the critics' claims that the administration sought to redefine torture to permit it, they almost never define torture themselves, much less accurately state the existing law on the books. And they never say how they might choose to apply it to captured al Qaeda leaders. Looking back now, I realize that we did not explain ourselves as clearly as we could have in 2002. I failed to anticipate that the memo would leak and that it would become susceptible to quotations out of context. The definition of severe physical pain or suffering as similar in level to that accompanying organ failure, loss of a limb, or death did not do justice to the more complete definition in the memo itself. The environment of war did not give us the luxury to worry about future perceptions of our work.
But like it or not, the antitorture statute narrowly defined torture as the infliction of severe physical or mental pain or suffering. Congress could easily have chosen to broaden this to "all" or "any" physical or mental pain or suffering, or the like. It did not. Plenty of bad acts are illegal under the definition of torture that Congress adopted, but not all forms of coercive interrogation are. Methods that are manipulative but do not cause severe pain or suffering are permitted.
In order to provide the White House better guidance, we compiled numerous examples from actual cases. We reviewed American and international literature. American judicial decisions on the Torture Victims Protection Act create a civil remedy for victims of torture and give a definition very similar to the criminal statute.33 Those cases speak of torture as severe beatings, mock executions, threats to cut off body parts, burning, electric shocks, sexual assaults, or torturing a third person within view.34 They illustrate what torture has been considered to be, mostly in the context of truly brutal authoritarian regimes. They are not meant to comprise an exclusive list or to define any line below which all else can be considered lawful.
It is often said that the United States has defied the opinion of the rest of the world with its antiterrorism tactics. That is absurd. Counterterrorism agents in the United Kingdom and Israel first developed methods to break the will of terrorists without inflicting severe physical harm. In the U.K., the British forced certain IRA members to stand against a wall, placed hoods on their heads during questioning, played loud noises, or reduced their sleep or rations. The European Court of Human Rights (ECHR) found the British methods to be inhumane and degrading treatment, but also found that Britain's interrogation methods "did not occasion suffering of the particular intensity and cruelty implied by the word torture."35 Reagan administration officials had, in transmitting the CAT to the Senate, specifically pointed to the British methods as an example of conduct that would not violate the torture ban.36
Israeli experience held the same lesson. In response to the Palestinian intifada and a campaign of suicide bombings, Israel's General Security Service (GSS) employed a combination of stress-inducing methods to interrogate terrorist suspects--forcing detainees to withstand uncomfortable positions, forceful shaking, excessively tight handcuffs, and sleep deprivation. Israel's Supreme Court heard a challenge to GSS procedures in 1999 and reached a similar conclusion to the British case. It found that legislative authorization was needed for the methods because they were inhumane and degrading--but that they were not torture.37 Obviously, the judicial decisions of other countries don't bind the United States legally. But they are examples of other democratic nations with legal traditions not unlike our own dealing with an ongoing terrorist problem. Both Britain and Israel adopted a ban on torture, and their courts and commissions found that it did not prohibit coercive interrogation. Critics could argue that coercive interrogations did nothing to solve the ultimate terrorism problems in either Ireland or Israel, and that neither country became safer. No one in the government, however, argued that aggressively interrogating al Qaeda leaders would end the threat of al Qaeda. It could produce information that might prevent attacks and save American lives. Both the Israeli and British experiences are examples of democracies with legal traditions similar to our own making the difficult decisions required by terrorism.
So, even for al Qaeda leaders, our rules prohibited severe physical pain or suffering. Limited stress--by forcing detainees to assume uncomfortable physical positions, or limiting their sleeping patterns or food--was not barred under this standard. This is not a police or prison brutality standard, as the critics have alleged. It is more like basic training or boot camp in the Army or Marines, where the purpose is to break down trainee resistance. These are measures, it should be emphasized, that no one should be happy to think about. Ideally, eve
ryone would prefer a system in which a detainee was read his rights and then allowed to remain silent, if he so chose. But it was al Qaeda's attacks that made the costs of silence and inaction so great. After 9/11 our government had to make tragic choices between saving American lives from future terrorist attacks and observing the rights of suspected al Qaeda leaders. Not using such measures is just as much a choice as using them.
Commentator Anthony Lewis likened the 2002 memo's legal discussion to that of "a mob lawyer to a mafia don on how to skirt the law and stay out of prison."38 Critics of the war on terrorism seem to believe it is wrong or immoral for our elected leaders even to ask about the legal limits of their powers, or for government lawyers to answer their questions. President Bush and his advisers should not have asked about the meaning of the antitorture law, according to New York University law professor Jeremy Waldron, because doing so suggested that they wanted to act up to its limit. As Waldron puts it, "[T]here are some scales one really should not be on, and with respect to which one really does not have a legitimate interest in knowing precisely how far along the scale one is permitted to go."39 According to the critics, Justice Department lawyers should have refused to answer the White House's question, out of moral outrage. This is wrong. A President would be derelict in his duty if he did not review the full legal extent of his options in deciding policy, especially when confronted by the challenges of this new kind of war.