The Total Legal Clarity On Torture


Clive Crook reads the OPR report and protests that American law against torture is "still not as clear as it should be, and Congress has let that state of affairs persist." In my view, it could not be clearer. The whole point of Geneva and the UN Convention and US domestic law is that the infliction of "severe mental or physical pain or suffering" to extract confessions is illegal under any circumstances, especially military emergencies. Anything that comes anywhere near this kind of treatment is barred. Much that falls short of torture is barred as well. Categorically. The expansiveness of the law is not the same thing as vagueness. It is a declaration that this is a third rail never to be gone near.

Somehow, no one had this debate about the lack of legal clarity about torture or inhumane treatment in the US before 2002. No one. Why? Because it was unthinkable.

What changed is that for the first time in American history a president of the United States chose to cross the Rubicon and under his sole and secret authority decided to torture prisoners under the mistaken belief that this was a way to get accurate intelligence. He did this not in the classic ticking nuclear bomb scenario as an emergency exception to the clear rule - but as an ongoing program with respect to individuals seized with no due process, innocent and guilty, in a war without end. This was not a close or even faintly ambiguous legal call. As the OPR Report clearly states:

Former Deputy AAG John Yoo committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

OPR finds professional misconduct when an attorney intentionally violates or acts in reckless disregard of a known, unambiguous obligation imposed by law, rule of professional conduct, or Department regulation or policy.

There is no lack of clarity there by legal professionals, the internal watchdog of DOJ. In fact, the term used is "unambiguous". Crook is arguing that 9/11 somehow changed two centuries of American presidential scrupulousness in this regard, rendered Geneva irrelevant, and somehow shifted the burden of proof against those who insisted on the plain meaning and intent of the law. Moreover, this was to be perpetuated by memos going well into Bush's second term, and Cheney is still aggressively arguing to continue them for ever. But an event does not change the plain meaning of the law. And there is and was no reason for Congress to change a law whose meaning had been crystal clear for decades.

Yoo's belief that the president has permanent super-powers in wartime and that wartime can be a permanent condition against a concept such as "terror" are not legitimate let alone "legal" views. They are insane. They render the United States an elected fascist dictatorship, where the law is what the president says it is and he has the power to torture evidence out of suspects to prove whatever case he wants. The idea that this is what the Founders of this country wanted when they allowed for an energetic executive in times of emergency to act with dispatch - as in shooting three Somali pirates - is such an over-reach it boggles the mind that any reasonable person can begin to contemplate it.

It makes a total mockery of a constitutional democracy and limited government. It creates a permanent Schmittian dictatorship with the torture power. To claim, as Yoo did, that the Geneva Conventions and domestic law permit prisoner mistreatment up to the point of death or loss of major bodily organs is equally insane. There is not a shred of legal reasoning here - there is rather quite obviously a desire to invert an unambiguous prohibition into an open-ended writ to do anything to defenseless captured human beings, with a painstaking and cynical legal cloak to prevent these war criminals from being brought to justice. To cite Goldsmith as an independent source when he was in the same administration tasked with the same area and enmeshed in the same legal responsibilities is like looking to Pat Buchanan as an independent observer on Watergate.

Except this makes Watergate look petty. But then we had a working press with balls, and now we websites seeking hits by sucking up to power.

(Photo: Robert Giroux/Getty.)