John Yoo’s rationalization of torture

The blogosphere is abuzz with this story, and rightly so.

The background, briefly, is this. From 2001 to 2003, John Yoo worked in the United States Justice Department’s Office of Legal Counsel, where he assisted the Attorney General in the AG’s role as legal advisor to President Bush and to all the executive branch agencies.

In that capacity, Yoo wrote memos in which he argued that torture is legal as long as certain conditions are met. One of the key Yoo memos, long secret, was disclosed on April 1 (but it’s no April Fool’s joke).

pdf file of the memo available here.

Time’s Jay Carney:

By [Yoo’s] incredibly dangerous and misguided reasoning, any interrogator who tortured or cruelly mistreated a prisoner could not be held responsible so long as he wasn’t inspired by malice or sadism — as long as, in other words, he was just following orders. As long as he administered it dispassionately almost any kind of physical or mental torture would be condoned, by Yoo’s reasoning. Moreover, virtually anything an interrogator did to a prisoner could be justified so long as the President deemed it necessary as matter of national self-defense.

Salon’s Glenn Greenwald:

John Yoo’s Memorandum, as intended, directly led to — caused — a whole series of war crimes at both Guantanamo and in Iraq. [emphasis in original] The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush’s White House counsel, Alberto Gonzales, and Dick Cheney’s counsel (and current Chief of Staff) David Addington. …

While Yoo’s specific Torture Memos were ultimately rescinded by subsequent DOJ officials … the underlying theories of omnipotent executive power remain largely in place. The administration continues to embrace precisely these same theories to assert that it has the power to violate a whole array of laws — from our nation’s spying and surveillance statutes to countless Congressional oversight requirements — and to detain even U.S. citizens, detained on American soil, as “enemy combatants.” So for all of the dramatic outrage that this Yoo memo will generate for a day or so, the general framework on which it rests … is the one under which we continue to live, without much protest or objection.

Talking Points Memo reader KM:

[The Yoo memo] offer[s] the same banal rationale for perpetrating unspeakable acts of torture and cruel treatment as all other totalitarian regimes: The ends justify the means. Why? Because someone cloaked with authority says it does.

All humans self-justify. This is our nature. Our nation was founded as one of laws rather than men for the very reason of establishing limits on the worst excesses of human imagination, lust for power, and the capacity to self-justify.

In sum:
(1) The torture at Abu Ghraib and elsewhere was not carried out by rogue military personnel getting carried away by their absolute power over detainees. The military personnel involved were acting within a faux legal context carefully crafted by officials in the Bush administration.

(2) The USA desperately needs to return to the rule of law. (Not rule by the divine fiat of the President.) The country isn’t there yet, and Americans don’t seem to care much.

George W. Bush laughing

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11 Comments (+add yours?)

  1. Random
    Apr 03, 2008 @ 07:31:41

    Not going to argue with you about the Yoo memo – it genuinely does appear to be a shockingly cynical piece of work. But you don’t help your case by recycling this conspiracy theory again –

    “(1) The torture at Abu Ghraib and elsewhere was not carried out by rogue military personnel getting carried away by their absolute power over detainees. The military personnel involved were acting within a faux legal context carefully crafted by officials in the Bush administration.”

    Um, yes it was and no they weren’t respectively. Such arguments conveniently ignore the fact that –

    (a) The personnel involved were punished for breaking the law (and before you try to claim they were thrown to the wolves in response to the media firestorm you need to remember that the US Army suspended them from duty and started the prosecution process at least 6 months *before* the media heard about it). Why would the army prosecute them if they were only doing what was expected of them?

    (b) All the evidence available indicates the key problem was not that the personnel involved were given instructions to behave in such a way but that they were given no instructions at all on how to behave and simply made it up as they went along (cf. the Stanford Prison Experiment for how well this sort of thing works out). Worryingly, most of the people involved were reservists who were prison officers or police in civilian life, which raises concerns about what goes on in US jails.

    (c) Even by the low standards of the Yoo memo they were behaving illegally anyway. Look at those pictures again – can anybody seriously claim the guilty parties were not “inspired by malice or sadism”? Furthermore there is no evidence that they ever either obtained worthwhile evidence as a result of such torture or even seriously tried to. It seems to have been done wholly for kicks. How such behaviour fits in with even the most cynical and depraved motives attributed to the cartoon villains of the Bush administration baffles me.

    Seriously, you have a strong enough case on the Yoo memo alone. Dragging in absurd conspiracy theories about Abu Ghraib only distracts from and discredits your real point.

    Reply

  2. Stephen
    Apr 03, 2008 @ 07:48:56

    The personnel involved were punished for breaking the law … at least 6 months *before* the media heard about it.

    Can you provide a link for that information? I’d like to know the details.

    I don’t accept your dismissal of my position as an absurd conspiracy theory.

    (a) The Bush administration has continued to use the “shock the conscience” standard for what constitutes torture, even after the Department of Justice backed away from the Yoo memo.

    (b) Yoo’s memo created a context where interrogators (and their superiors) believed they would not be at legal risk for any tactic they chose to employ. You’re right, they were not provided with any guidance; but you have to ask, Why not? You have an administration that (a) obtained a legal opinion that torture was OK and (b) set no boundaries for interrogators. I don’t think it’s an absurd conspiracy theory to conclude that the administration wanted interrogators to employ torture.

    (c) The administration has made continual efforts to get the public onside with the torture regimen. They have belatedly distanced themselves from waterboarding, while keeping the door open to all other tactics.

    My suspicion is that the Abu Ghraib interrogators would not have been disciplined if they hadn’t taken humiliating photographs of the detainees. Political considerations are separate from legal considerations.

    Reply

  3. aaron
    Apr 03, 2008 @ 08:32:56

    Random,
    A few low-ranking personnel and reservist officers were punished. There’s very little doubt that higher-ups were very involved in setting a policy of torture, but not surprisingly it was characterized as rogue operations.

    This viewpoint isn’t just that of the Karpinski (http://seattlepi.nwsource.com/local/246793_abughraib02.html), but of the officer charged with investigating what happened at Abu Ghraib. Major General Taguba said stated that he was ordered to investigate only the personnel, and when the trail led to higher-ups, he was forbidden from pursuing that line of investigation.

    “These (military police) troops were not that creative,” he said. “Somebody was giving them guidance, but I was legally prevented from further investigation into higher authority.”

    http://www.abc.net.au/news/stories/2007/06/18/1954193.htm (complete article here — http://www.newyorker.com/reporting/2007/06/25/070625fa_fact_hersh)

    Stephen,
    One more cite to add to your list — http://firedoglake.com/2008/04/02/yoo-torture-memo-ill-take-addington-at-cheneys-behest-for-1000-alex/.
    Christy Hardin Smith notes that one of the most amazing things about the memo is that the most relevant case on the executive’s authority during wartime, Youngstown, wasn’t even considered by a so-called constitutional law expert (who now *teaches* constitutional law).

    But please don’t say that Americans don’t care — many of us do.

    Reply

  4. Bridgett
    Apr 03, 2008 @ 10:49:14

    Ok, much lighter comment: that picture of Bush. Yikes.

    Reply

  5. Random
    Apr 03, 2008 @ 11:05:27

    “Can you provide a link for that information? I’d like to know the details.”

    The Taquba report was the first full length investigation into the goings on at Abu Ghraib and was commissioned on 19 January 2004, and refers to the fact that criminal investigations into the abuse were already underway at that point (though it doesn’t give a date for when those started), and it first hit the media with a report on CBS’s “60 Minutes” programme on 28th April 2004. (I misremembered slightly – it was apparently at least 4.5 months, not 6.)

    “(b) Yoo’s memo created a context where interrogators (and their superiors) believed they would not be at legal risk for any tactic they chose to employ. ”

    The slight problem with that is that it was a secret memo. There’s no evidence at all that the semiliterate goons at Abu Ghraib were even aware of it (or could have understood it if they were).

    “You’re right, they were not provided with any guidance; but you have to ask, Why not? ”

    The Taquba Report addresses this too, and puts it down to straightforward, appalling incompetence (for which essentially the entire chain of command at Abu Ghraib was purged, BTW). And anyway, you can’t have it both ways – they either received no guidance at all or they received guidance based on the Yoo memo. Which is it?

    “I don’t think it’s an absurd conspiracy theory to conclude that the administration wanted interrogators to employ torture.”

    You’re right, it isn’t (or at the very least, it’s not absurd to say that the administration wanted to create an environment whereby torture could be defined into virtual non-existence and it could be employed with practical impunity). The absurd conspiracy theory is to claim that the Abu Ghraib atrocities were part of a deliberate policy sanctioned at the highest levels of the administration. For starters, it wasn’t interrogators who carried out the atrocities it was ordinary guards, and there is no evidence at all that they even tried to obtained real intelligence this way, never mind that they actually got any. All the evidence is that they were out of control and simply doing it for the sheer fun of it (the malice or sadism that even Woo balked at).

    “My suspicion is that the Abu Ghraib interrogators would not have been disciplined if they hadn’t taken humiliating photographs of the detainees.”

    Only in the sense that the photographs provided rock-solid evidence. The disciplinary process was already well under way when the story first hit the media.

    Reply

  6. Bill
    Apr 03, 2008 @ 15:39:08

    While I am not informed enough on the chronology of the Abu Ghraib incident to know if “The disciplinary process was already well under way when the story first hit the media,” I suspect your right.

    I side with Stephen on this, because having lived beside a major military institution, worked on that same military base with military personel (many of whom are my friends), I have serious doubts that any action carried out by military personel was done so without forethought or by soldiers “getting carried away by their absolute power over detainees.”

    Pardon the vulgarity but this is a common phrase known to any person in the military. A soldier doesn’t take a crap without orders.. In this case I tend to think it was less formal than an order but I suspect humiliation was more than condoned.

    Reply

  7. Stephen
    Apr 04, 2008 @ 07:20:43

    Please note Aaron’s comment. Initially it was sent to moderation because of the number of links in it, so it’s back a few places in the thread.

    Reply

  8. Stephen
    Apr 04, 2008 @ 08:23:43

    • Random:
    FWIW, Talking Points Memo argues that the road from the Yoo memo to Abu Ghraib is short.

    First, TPM quotes the New York Times, saying that the Yoo memo “adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials.” Based on the Times analysis, TPM concludes that the memo is not a smoking gun.

    Still, the natural suspicion remains that Yoo’s expansive parsing might have migrated over to Iraq. After all, Major General Geoffrey Miller, then the commanding officer at Guantanamo Bay, did travel to Iraq in August of 2003 to advise officials there on interrogating Iraqi detainees. Miller had been briefed on the Pentagon’s guidelines for interrogation, which owed much to Yoo’s green light.

    Hence TPM’s assertion that it’s a short road — a clear link from the Yoo memo to Abu Ghraib in the person of Major General Geoffrey Miller. Anything beyond that is an inference. But would we expect the Bush Administration to ‘fess up if Miller had intentionally established a pro-torture climate?

    In any event, we know that Yoo declared torture legal. We know that the Bush administration approved of torture in the supposed interests of national security. Ane we know that torture happened in many instances.

    On what grounds should we assume that the Administration did not approve of the specific incidents of torture at Abu Ghraib? It was politically inconvenient for them when the photos turned up, because at that point the Administration was still being coy about torture. But the Yoo memo shows that the framework was already in place even as Bush was still lying: “America does not torture.”

    there is no evidence at all that they even tried to obtained real intelligence this way, never mind that they actually got any. All the evidence is that they were out of control and simply doing it for the sheer fun of it.

    That’s perhaps your strongest argument. But in general I doubt the Administration’s claim that torture produces actionable intelligence. So it doesn’t carry much weight with me that no intelligence emerged from Abu Ghraib.

    • Aaron:
    Thanks for the links (though I haven’t had a chance to look at them yet).

    I know that lots of Americans care passionately about this issue. But, sadly, there still seems to be a groundswell of popular support for torture in America. Still, I don’t mean to generalize to all Americans. Thank God for the many bloggers who work so diligently to hold Bush to account for this.

    Reply

  9. Random
    Apr 04, 2008 @ 10:18:06

    Aaron,

    “A few low-ranking personnel and reservist officers were punished.”

    The highest ranking officer to be punished as a result of the investigation was Brigadier General Janis L Karpinski, who was relieved of command and busted down to colonel in the aftermath. Now Brigadier General may be your idea of “low ranking” but I rather doubt it’s the US Army’s (it is in fact the 4th highest rank in the US Army).

    “This viewpoint isn’t just that of the Karpinski ”

    You really shouldn’t cite Karpinski as a source without also making it clear that, as mentioned above, she was the commanding officer who was most severely criticised as a result of the investigations into the abuse and who was punished as a result of it, and has spent most of the time since attempting to deflect blame from herself by smearing just about everybody else in theatre. To put it at it’s absolute mildest, she is not a disinterested observer.

    “Major General Taguba said stated that he was ordered to investigate only the personnel, and when the trail led to higher-ups, he was forbidden from pursuing that line of investigation. ”

    Something which is not supported by the report he actually produced. As well as the punishment handed out to Brigadier General Karpinski, Taquba’s report also criticised the advice given by Major General Miller in the trip which Stephen later cites as a key part of the chain linking Yoo to Abu Ghraib. Additionally the terms of reference for Taquba’s report included “(U) Investigate the training, standards, employment, command policies, internal procedures, and command climate in the 800th MP Brigade, as appropriate;” – something which it would be rather difficult to do if he was forbidden from investigating anybody in the command chain.

    Now I suppose it’s possible to reconcile these conflicting facts by positing that Taquba did receive the guidance you quoted but that it wasn’t official (the guidance cited in the report would be that) and chose to ignore it (which would speak well to his personal integrity) but I can think of no other way of reconciling the contradictions.

    ““These (military police) troops were not that creative,” ”

    Except that all the evidence is that they were. Check Charles Graner’s wikipedia page, he’d been doing this sort of thing for years before Abu Ghraib in civilian prisons, Abu Ghraib was merely the first time he got caught sufficiently red handed to be prosecuted. Abu Ghraib was business as usual for Graner and his chronies, not something that required special guidance from on high.

    Reply

  10. aaron
    Apr 04, 2008 @ 10:28:41

    Random,
    Sorry if I wasn’t clear — the “low-ranking” was meant to describe the personnel, not the reservist officers. Regardless of her title, Karpinski an officer in the Army reserve — she was not “regular” Army.

    As for the Taguba Report, I find it strange that you choose rely on it in support of your cause, but ignore the caveats its author provided as to its limited worth, once he was forced out of the Army and allowed to speak freely. If you haven’t read the New Yorker article, I encourage you to do so.

    Reply

  11. Random
    Apr 06, 2008 @ 17:50:37

    “Regardless of her title, Karpinski an officer in the Army reserve — she was not “regular” Army.”

    A distinction without a difference. Once a reservist is mobilised they become regular army until they’re stood down again. That’s certainly how it works in the British army (I speak from personal knowledge, if not direct experience) and everything I’ve heard is that it works the same way in the USarmy as well. When she was serving at Abu Ghraib, Karpinski was regular army and her commission was worth as much as anybody elses’.

    “As for the Taguba Report, I find it strange that you choose rely on it in support of your cause, but ignore the caveats its author provided as to its limited worth, once he was forced out of the Army and allowed to speak freely.”

    Well, put it this way – if after he left the army he claims he was forbidden from investigating regular officers, and yet the report shows he did in fact investigate directly officers as high as the rank of Lt-General and scrutinised the activities of at least one Major-General, then what are we supposed to make of it? Either he misrepresented the scope and range of his investigations in his report or he misrepresented the restrictions placed on him to the media afterwards. As the former would almost certainly be a court-martial offence, I think that can be ruled out. Which leaves…?

    Stephen:

    “On what grounds should we assume that the Administration did not approve of the specific incidents of torture at Abu Ghraib?”

    Because, as I’ve mentioned several times now, the suspension of personnel involved and the criminal investigations began months before the media firestorm started. I could understand your argument if nothing happened until the story hit the media, at which point it would obviously be in the administration’s best interests to throw somebody to the wolves as an exercise in CYA. But why would the army have seriously begun criminal proceedings if the personnel involved had only been carrying out a policy mandated from on high? What was in it for them?

    “But in general I doubt the Administration’s claim that torture produces actionable intelligence. ”

    Of course it works when done properly. Waterboarding Khalid Sheikh Mohammed is said to have produced the evidence that led to the arrest of the architect of the Bali bombings for example, as well as several other successes.

    Please note though that I am not saying this to advance a utilitarian argument in favour of torture but to reject it – and also to reject the utilitarian argument against it (“but it doesn’t even work anyway”) which seems to be what you’re advancing here. The debate about torture is one of fundamental moral isues, and about the sort of people we want to be. On the specific instance of Abu Ghraib, I would remind you of the caveat at the start of the paragraph above – there is no evidence at all that this was “done properly” and a great deal of evidence that it was nothing more than a bunch of sadists having the time of their lives.

    Reply

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