Sunday, March 18, 2007

The Moral Rot That Is John Yoo

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John Yoo on the infamous Torture Memo:

Guantanamo Bay has just marked its fifth anniversary. John Yoo was instrumental in setting up the prison camp that has been widely condemned. ...

Yet Yoo's infamy in America derives less from clearing the legal way for Guantanamo than from being the author of the "torture memo," a legal opinion filed on Aug. 2, 2002, by the Office of Legal Counsel, a section of the U.S. Department of Justice. The memo examined what methods of inflicting pain and suffering constitute torture, and whether the U.S. president can order torture if he thinks it necessary.
... [I]t is difficult to read that memo without being shocked by its conclusions. It states, for instance, that "acts must be of an extreme nature to rise to the level of torture" (within the meaning of the Convention Against Torture as ratified by Congress). "The infliction of pain or suffering ... is insufficient to amount to torture." "Pain or suffering must be severe." "To amount to torture, an act must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure or even death."

The memo gives examples of some of the activities that count as torture: forcing someone to play Russian roulette, beating him until he goes into cardiac arrest, applying electric shocks to the genitalia, rape or sexual assault. The memo also gives examples of forms of treatment Yoo thinks do not constitute torture - among them are kicking someone, forcing him to stand against a wall, subjecting him to noise and depriving him of sleep. ...
Yoo's answer to "How far can we go?" turned out to be indistinguishable from "as far as the president wants to." The most controversial part of Yoo's advice was that, as commander-in-chief in war, the U.S. constitution allows the president to be the judge of what is and what is not "necessary" to prosecute war successfully. ...

Yoo goes on to say that waterboarding (one particular form of torture that attracted a lot of media attention when it came out that the CIA used it on high-value detainees like Khalid Sheikh Mohammed) is not torture, because it "does not inflict pain" -- and besides, what's so awful about torture, anyway?

"Does water-boarding (inducing the perception of drowning in someone to make him talk) inflict serious pain?' Yoo asks. "I doubt that the CIA thinks that it does ... or that it is going to stop using the technique, if the stakes are high enough." So despite the new law, the old tactics will be available? "I think so. And more important, so do they ..."

It would be wrong to say Yoo is pleased about that situation. But keeping the option of "inflicting pain" available is, he insists, better thanthe alternative, which is banning it absolutely. He remains convinced there are situations when torture is justified.

"No question about it," he said. "Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?"

John Yoo is off his rocker:

... In response to John's oh-so-reasonable logic -- "War means killing people[, so] if we are entitled to kill people, we must be entitled to injure them" -- Professor Dave Glazier writes with the following. [Dave actually knows quite a bit about the laws of war -- he served twenty-one years as a Navy surface warfare officer before going to law school -- but in this case, his remarks reflect basic propositions that even Deputy Attroneys General at OLC should be familiar with.]:

One of the most fundamental problems with Yoo's logic is that he is
simply ignorant of the law of war. Yoo clearly believes that war is essentially a lawless regime, subject only to a few treaties he knows of. In his view, if you can distinguish your situation from those covered by explicit treaty language, then you get to do what you want. What Yoo fails to recognize is that war is far from a
lawless regime.

A telling point is to examine international law treatises from the 18th and 19th centuries. Typically a full half to two-thirds of those tomes are devoted to the law of war. And the scope of coverage of the law of war has also significantly expanded during the Twentieth Century.

The most important point in this massive body of law is that war is not legally about killing. It is about compelling an enemy to submit. To achieve this it is lawful to incapacitate the enemy's military forces and damage or destroy valid military objectives. But you can never kill or further injure an enemy who offers to surrender or who is already incapacitated by illness, wounds, or previous capture. The people Yoo wants to "wound" are already incapacitated, and to inflict any further harm on them is a war crime. To argue that we could have killed them, so to mistreat them a bit should be OK, is totally contrary to every fundamental principle of the law of war. We could kill or wound them only when they were combatants at large and there was a military necessity to disable them from conducting further military operations against us. As soon as they were incapacitated, they became protected under both longstanding customary principles, enforced through literally thousands of war crimes convictions post-WWII, and the more familiar law of war treaties.

The premise of Yoo's argument is just as flawed as the legal reasoning (or lack of) behind it. Obviously, any torture victim would choose continued existence over death if there appeared to be a choice, but I also know enough from years of educating myself about torture, and being an Amnesty International volunteer, that when the choice is between torture with no end in sight, and death, many torture victims would choose death. In fact, the relief and release death offers from unimaginable physical torment is used by the torturer to increase the suffering -- by making the victim believe he will not be allowed to die. The essence of what torture is about is getting the person being tortured to become convinced that the pain will never end, that there is no escape, not even death.

Yoo's position is corrupt at its core. If, for argument's sake, we accept the false assumption that torture produces the kind of solid, actionable information that could save tens of thousands of lives, or millions of lives; and we agree that it's better that "one person" be tortured to save the lives of "10,000, or 50,000, or a million people," then how can Yoo justify drawing the line at practices that are "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure or even death." Exempt death, because obviously a dead person cannot tell his interrogators what they want to hear: Can John Yoo reasonably argue that rape, or electric shocks to the genitals, or Russian roulette, or forcing a detainee to watch as his wife is gang-raped and his children tortured in front of him, are off-limits when a million innocent lives are at stake?

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