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Abu Ghraib Defendants Seek Government Documents on Detainees

June 21, 2004 at 12:00 AM EDT


RAY SUAREZ: For more on the prisoner abuse story we get two views, John Yoo is a professor at the University of California in Berkeley. From 2001 to 2003, he served as a deputy assistant attorney general at the Justice Department. He’s the author of the January ’02 memo on what constitutes torture. Kenneth Roth is executive director of Human Rights Watch, which recently issued a report called The Road to Abu Ghraib.

Kenneth Roth, the Iraq defendants want copies of the Justice Department memos in order to argue that the policies on torture apply to them and it should be understood that there was an atmosphere of license and that should be part of their argument. Should they get those memos and can this be extended… can the memos be extended to their case?

KENNETH ROTH: Well, unfortunately they seem to have a credible argument when they contend that senior administration officials, particularly a group of lawyers, created a permissive atmosphere when it came to torture or other severe abuse of prisoners. What you would have expected from Justice Department lawyers was a conscientious effort to apply the law or at least an effort to state what the law was in an objective manner.

But instead what we see from these memos is an effort to find the legal loopholes, to permit a range of abuses that frankly any objective observer would find to be flatly illegal. Now we don’t know whether they were doing this on their own initiative or whether they were doing this under orders from more senior non-lawyer officials in the Bush administration, but either way there seems to have been a signal sent that anything goes and virtually anything goes when it comes to interrogation and somehow or other the lawyers will find a way to mount a defense and get the interrogator out of any potential prosecution.

RAY SUAREZ: Kenneth Roth, even if these legal opinions were harvested to apply to prisoners in Guantanamo Bay and prisoners caught in the war in Afghanistan?

KENNETH ROTH: Well, if you’re asking were these memos a correct statement of the law, no, not at all. I think that they twisted the meaning of the prohibition of torture. They virtually ignored the parallel prohibition of cruel, inhuman or degrading treatment. Now the initial memos were written about Afghanistan and Guantanamo, but what we have now seen is that there were parallel memos that closely tracked the initial ones written by the Defense Department just before the Iraq war.

So there does seem to have been a carryover of value to these memos. Indeed there was even carryover in terms of personnel. General Miller who was overseeing the interrogation in Guantanamo later went and tried to bring Guantanamo methods to Abu Ghraib so there does seem to be some ongoing relevance to these memos even beyond the Afghanistan context for which they were drafted.

RAY SUAREZ: Professor Yoo, should the defendants in Baghdad be able to use these memos as part of their defense?

JOHN YOO: First, let me make clear that I’m only speaking now in my capacity as a law professor. And I’m not in any way commenting and I cannot comment on the legal advice or work I did with the Justice Department. Second, certainly a defense attorney should be able to explore any legal theories that he believes may reasonably and credibly aid his defense. So I don’t see any problem with a defense attorney seeking these memos.

I do have to say, though, and I think we should make clear that these memos that have been released on the Internet and that have been discussed in the newspapers do not actually discuss Iraq. Iraq as a conflict is covered by the Geneva Conventions. The president and the Pentagon made clear at the beginning of the conflict that they were covered by the Geneva Conventions.

The conflict with al-Qaida is a different conflict. And Al-qaida, which is a terrorist organization, is not a state. It has not signed Geneva Conventions. It does not obey the laws of war. The very purpose to cause massive civilian casualties violates the very core notion of the laws of war.

They’re not covered by the Geneva Conventions so I think those are two separate legal regimes, and I think certainly the lawyers should be entitled to try to explore any possible links if they believe they’re there, but I don’t think that there are those links there.

RAY SUAREZ: So far the judge has denied the civilian defense attorneys in these cases access to the memos, but let’s talk a little bit why they were written in the first place. Did the executive branch officers want to have a template, a handbook on what was and what wasn’t torture?

JOHN YOO: Again, I can’t address that question. I can’t talk about what I did in the department or what I might have seen in the department. Let me say this. Just as an observer, you would want, I would think, the government to ask questions about the meaning of statutes that were passed by Congress. There is a torture statute, you know, passed by Congress in 1994. And it defines torture as the specific intent to inflict severe mental or physical pain or suffering.

I would think that in a war such as this one, an unprecedented war against a new kind of enemy, a non-state actor, that can inflict the kind of damage that could only be inflicted in the past by a nation-state I would think you would want the government to ask the legal advisors what does this statute passed by Congress publicly mean because you need to know before you shape policy what the legal rules are.

The other point I’d make is just because the government asks that question and wanted to know what the law was doesn’t necessarily mean that the policy that was drafted ran all the way to the limits of the law. For example, with the Guantanamo Bay situation, the president ordered that the military at Guantanamo Bay treat all the detainees humanely and consistent with the principles of the Geneva Convention. That’s a policy decision. It doesn’t necessarily run as far as the legal rules would allow. So you shouldn’t equate what a different memo interpreting standards set out by Congress did with the policy that the White House and the Pentagon eventually articulated and followed.

RAY SUAREZ: Kenneth Roth in your reading of the international covenants to which the United States is a signatory, is there a lot of difference in the standards and the legal definitions set out in our treaty obligations and set out in these memos concerning torture and its definition?

KENNETH ROTH: Yes, I have to say reading the memos I barely understand the international legal obligations. I just don’t see them reflected there. Let me make a few points if I could. First to say that the Geneva Conventions don’t apply in Afghanistan but do apply in Iraq is a bit of a red herring because in those places there was a separate treaty that clearly did apply: The convention against torture and other forms of cruel, inhuman, or degrading treatment.

The memos purport to interpret that separate treaty but basically interpret it almost out of existence by defining torture in such a narrow restricted way that it is virtually no longer a constraint on interrogators.

Second, we do know the context in which, for example, the principal Justice Department memo was written. It was in response to a request from the CIA to the White House counsel saying please give us guidance on the kind of interrogation that we can do. And the response from the Justice Department was, basically, you can do almost anything you want because we’ll come up with a defense to deal with any possible criminal prosecution.

Finally when it came to implementation, we do know how that policy was implemented. The president may have said they’re going to treat people in Guantanamo humanely but at the same time the Defense Department approved a series of so-called stress interrogation techniques which were clearly illegal — things such as stripping people naked, hooding them, depriving them of sleep for long periods, subjecting them to stress positioning, putting them in very painful positions for long periods or subjecting them to extremes of heat, cold or light or dark — and that, all of those or most of those are flatly prohibited and render meaningless the vow that these detainees would be treated humanely.

RAY SUAREZ: Professor.

JOHN YOO: Well, I think there’s an important difference between what our international obligations under the treaty might be and how Congress implemented them. So the United States ratified the torture convention and then left it up to Congress to implement it as a matter of domestic law. And It’s from that implementation and a federal statute passed in 1994, signed by President Clinton, that the Congress defined torture and defined it in a pretty strict way. But that’s Congress’s definition: specific intent to inflict severe mental or physical pain or suffering. That’s not the Bush administration’s definition. That’s Congress’s definition. So that’s one thing.

The second thing about the defenses that Ken mentioned, the treaty, the torture convention treaty, and Ken is right, does preclude certain kinds of defenses. You cannot claim necessity as a defense to prosecution for torture. You cannot claim you’re in wartime in emergency situations.

However, Congress did not implement those defenses. Congress only implemented the definition of torture. And in general in the federal criminal law unless Congress specifically takes away your right to claim self-defense or takes away your right to claim, necessity then the defendant, any defendant who is charged with it, would obviously be able to raise them.

RAY SUAREZ: What about the notion that you’re following orders? It’s my understanding that the Geneva Convention does not allow that as a defense but in these memos fairly sweeping and broad powers were given to the president to authorize certain kinds of behavior.

JOHN YOO: Well, I think the way to think about this is what’s commonly called the ticking time bomb hypothetical. That’s a situation where suppose a terrorist has a weapon of mass destruction in an American city. And we capture a high-ranking al-Qaida leader who we think has information about where that bomb is. Now no one is saying, well, the memos certainly don’t say you should torture that person or you should do a, b or c as a matter of policy. It doesn’t address that, but it does talk about if you look at, if such an extreme situation arose, we don’t want to, I believe, take certain options away from the president if by doing, you know, aggressively interrogating someone you could save thousands if not millions of American lives.

It’s not saying that in every specific situation where any American soldier might step over the line that there’s going to be a defense of following orders. But it does say if the president within his commander in chief authority does issue an order in certain extreme situations I think the memo does say that you might be able to raise that as a defense.

RAY SUAREZ: Kenneth Roth, is that how you read the powers given the president?

KENNETH ROTH: Let me just if I could first respond to a point that John just made which is I think maybe the heart of our disagreement here is that the memo — I don’t know whether John had anything to do with that particular memo or not — but the August 2002 memo basically asks what does domestic criminal law proscribe? It doesn’t ask the separate but equally important question, what did the United States vow not to do when it ratified the convention against torture? What were its declarations to the rest of the world?

And so Congress only prohibited torture. It actually defined torture in basically the same terms as the convention against torture. It didn’t criminalize the separate prohibition of cruel inhuman or degrading treatment. There’s no criminal statute there. But nonetheless the Senate ratified, the president signed, a treaty that prohibited cruel, inhuman or degrading treatment so the president is still bound by the international law even though there is not a formal crime there. But the memo basically ignores that non-criminal set of restrictions on the president.

Separately, it runs through a series of defenses. These are perhaps the most appalling parts of the memo because these apply not only to cruel, inhuman or degrading treatment but also to outright torture. For example it asserts the so- called commander in chief authority of the president to order torture basically saying by virtue of being commander in chief he can throw out some of the most basic prohibitions of international law whether it’s in the Geneva Conventions or the convention of torture.

By that logic you may as well let Milosevic go free tomorrow because he was commander in chief or release Saddam Hussein because he was commander in chief when he committed genocide against the Kurds. I mean, that is a radical theory that should never be endorsed by the U.S. Government.

RAY SUAREZ: John Yoo, commander in chief authority is cited several times in these memos. What is it?

JOHN YOO: The commander in chief authority comes from Article 2 of the Constitution, and it states that the president is the commander in chief of the military and by tradition has always been interpreted to give to the president the decisions on how to wage war and traditionally under our system Congress has not interfered with those kinds of decisions.

So, for example, in cases of conflict what would have happened if Congress had passed a statute at the end of World War II prohibiting the use of nuclear weapons, could the president, President Truman at that time, still as commander in chief decide to use them. The argument that Ken is making is basically that Congress does have that authority, that Congress could restrict how the president makes certain tactical, strategic or operational decisions.

RAY SUAREZ: Quickly, what about his idea that it’s a radical departure from earlier law concerning the rights and the powers of the president.

JOHN YOO: I don’t think so, for example, take the War Powers resolution — Congress tried to prevent the president from using armed force for longer than 60 days. That statute has never been accepted as constitutional since and including President Nixon and was violated in the Kosovo operation by President Clinton.

RAY SUAREZ: Professor Yoo, thanks a lot.

JOHN YOO: Thank you.