Yoo’s Swiss Cheese

November 16, 2010

cockelshells

Thoughts on the smell of Yoo’s Swiss Cheese

I am no lawyer.

But having slogged my way through what is – since its leaking – known as the “Torture Memo”, I feel no need to be silent.  I may not have the training and knowledge to build a contrary memo of my own, but I am confident that I can highlight errors throughout the memo.

(Maybe this is a measure of how easy it is to find fault with that which we already disagree with.  Maybe its a measure of how incredibly faulty the memo is).

In case you want to read it for yourself – hours of slogging, but certainly not impossible for anyone literate, curious and determined – this document was official titled “Memorandum for William J. Haynes IT, General Counsel of the Department of Defence. Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States”.

(Granted, my academic training – for whatever its worth – was in International Relations, which naturally included discussion of International Law).

The memo is bulky: 80 pages. It was written (2003) by the top lawyers at the US Department of Justice to help out the folks at another government department (Defence).  The wording here is deliberate: it is debatable whether the memo was intended to help the Department of Defence understand their obligations under the law, or if and how they could (legally) justify their actions. Skipping over, for the moment, this debate… what follows are a number of opinionated reflections:

(1)

It can be assumed that no-one at the top of the US government ever read the Torture Memo.

President Bush and Donald Rumsfeld (Dept.of Defence) – in particular – certainly spoke as if they understood the legality of their interrogation methods.

As has been pointed out elsewhere (journalist Jayne Mayer), the top of the Bush administration was exceptional: against the norm, not one of them was a lawyer. Even if they did read the memo, their understanding of it would be at least as limited as my own.

In any case, folks like the President, Vice-President, and head of the Department of Defence, are too busy to spend hours reading through any single memo. What they would have heard is a summary prepared by an aid. Any summary highlights the conclusion over the contents… and Yoo summed up his conclusion this way:

“Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defence could provide justifications for any criminal liability. “  The aid would have supplied a translation for this legalistic wrap-up. Here’s mine: even if the treatment of a prisoner breaks a law, it doesn’t matter. It can always be said to be necessary or in self-defence.

This could mean that the top of the White House is not culpable for any treatment (up to and including abuse and even homicide).  Their power was exercised, it should be admitted, with the benefit (handicap) of a summary of legal advice… advice which was (it is now widely agreed) as faulty.

But… doesn’t it matter that the advice told them what they – almost without a doubt – wanted to hear? (Cheney, in particular, had already made plenty of public statements about it being “necessary” to act “on the dark side”). Aren’t we responsible for the things which we want to hear? If someone tells us (in a position of power) what we want to hear, aren’t we partly responsible for what is said?

But… Imagine that, on the basis of faulty legal advice, you smack me over the head with a hammer. I hope that you would still be arrested. The legal advice may be a reason for a little empathy, but it does not completely excuse anything.

But… Even with no legal advice, aren’t we are still held to the law?… whether we understand it, or even know about it.

But… what kind of idiot thinks that its legally permissible to waterboard (a frightening ordeal intended to feel like drowning), chain with arms stretched upwards behind the back (a “stress position” called a “Palestinian Hanging”), confusion by days of sleep deprivation.
… no matter what some lawyer says.

–Doing publicity for his memoir (published 2010), former president George W.Bush was still insisting that waterboarding was legal. How d

demonstration of Waterboarding

id he know? Because, he explained, the lawyers told him so.

(2)

We have the memo, but we do not have the request for its production.

an only slightly different version was used by the Spanish Inquisition

It is, however, obvious that it was written assuming (correctly, or incorrectly) that the Department of Defence wanted to know (a) how far it could take “coercive” interrogation, based on (b) the limits of what could be (legally) defended.

The memo does not read like advice to a client wanting to understand their obligations under the law.  The overwhelming emphasis is on (a) arguing that the US is not obliged to obey international treaty x,y,z, and (b) pointing the reader towards ways in which various acts, in the event of prosecution in an American court, could be defended. (It also refers to, and leans on, an argument made elsewhere that “unlawful combatants” are not protected by the laws of war).

The memo works its way through long, escalating list of possible acts: shouting, slapping, hitting, beating… humiliating, creating discomfort, d

eprivation of sleep, drugging…  As it goes through these acts, it suggested defences. These stretch along a spectrum of styles: from meticulously detailed and convoluted, to the broadest of brushes.

Many defences hinge on matters of definition. Most (in)famously, Yoo makes a great deal of hay from puzzling over the meaning of “severe” pain or suffering. He puzzles over the meaning of “assault” (especially, do you need to touch the victim?), the difference between “substantial” and “serious” (bodily injury),  “specific intent” vs “general intent”,

I am all for semantics. They may be tedious, but unless everyone is speaking the same language (defining terms in the same way), or at least understands each other’s language (knows what the other means by x,y,z), there is no point having a conversation.

There are, however, problems.

First, the inevitable difficulty of precisely defining terms can be used to dismiss the entire question. (We can not define “Art”, so there is nothing to be gained by asking “what is art?”)

Second, an unchallenged author (like one preaching an 80 page sermon to the converted) is able to improve his position by defining terms to suit his needs. Most obviously (and infamously) Yoo takes defining “severe pain” as an opportunity to set the bar impossibly high. It must, he reasons, “must rise to a similarly high level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions”.

Third, maybe legal arguments make frequent references to dictionaries… but even as an undergraduate, I was taught that the practice was embarrassingly amateur.

In a number of cases, Yoo proposes defences based on tiny details within the wording of legislation and treaties.  For example, the law sometimes specifically lists sub-types of an offence. The law prohibiting “maiming”, he points out, lists a finite list of types. Since it fails to preface this list with the phrase “such as”, he reasons that anything not specifically mentioned is not forbidden. You may not cut off a nose or ear, but (he implies) you may cut off a toe.

Now he starts to sweep his brush in wonderfully broad strokes.

Yoo repeatedly resorts to insisting upon intent. He points to wordings which do exist in legislation and treaties which demand that, for an act to be torture, an interrogator must “intend” to inflict severe pain.  He takes this so far as to argue that as long as it can’t be proved that an interrogator intended to inflict severe pain, even “maiming” a detainee (which he agrees includes burning with acid) would not qualify as torture. It is, conviently, very difficult to prove intent.

Yoo sweeps in enormous strokes to argue that anything is permissible… as long as harm to the detainee is outweighed by the harm (a major terrorist attack) which can be avoided by extracting information the detainee is concealing.

My knowledge of US law is limited, but if it is really so extremist its Utilitarianism, I fear it even more today that I did yesterday.

Ultimately, this is bettered by one more.  It does not matter if interrogators are incorrect and detainee turns out to be innocent, or at least know nothing of any use.  Anything is permissible as long as the interrogator believes, in good faith, that the detainee is concealing information which could stop a major terrorist attack.

(3)

Spotting holes in Yoo’s memo could be assigned as a good exercise in critical thinking.  A student should be able to spot faults in a paper in any subject, provided it is written in a sufficiently straightforward manner.

(This is not a criticism of the Torture Memo. Undecipherable, jargon encumbered prose too common… it should diminish our respect for the author and increase our suspicious of his ideas).

(4)

If you read the testimony of the lowly prison guards at Abu Ghraib, you can hear an eerie echo of an important part of the Torture Memo.

Yoo makes a great deal of puzzling over the meaning of “assault” and trying to lay out distinctions between its different types.  While he does not end up advising against all physical contact, he does emphasize his opinion that any treatment which does not involve touching a detainee can not be “assault”.

At Abu Ghraib, a detainee was hooded and told to stand on a box. Wires were attached to his fingers. He was told to keep his arms outstretched and not to fall off the box, lest he be electrocuted. Photographs were taken; these would become the most infamous when a collection of such photos were later leaked to the media.

One of the soldiers – the same one that told the detainee that falling would cause him to be electrocuted – explained later: “I knew he wouldn’t be electrocuted… it was just words.  It would have been meaner if there really was electricity coming out, and he could really be electrocuted.  No physical harm was ever done to him.”
Maybe this is the coincidence of two people with matching views of right and wrong.  Maybe this is the result of Yoo’s argument filtering down to the very the bottom. It is not – to be fair – completely faithful to the memo’s advice. Yoo advises that threatening a detainee with death (as long as that death is imminent) is illegal. The threat in this case (electrocution if he falls) is obviously imminent, and therefore illegal. By the time Yoo’s advice filtered down to the soldiers it, not surprisingly, had lost its coherence.  Understanding Yoo’s advice – in case one finds oneself attaching wires to a detainee who is  standing on a box – requires piecing together two portions of the memo (one explaining that assault, without contact, is not assault, the other explaining that a detainee must not be lead to believe that his death is imminent).

This supports the idea that soldiers – who could not be expected to understand the law – lacked proper supervision.  There’s more than a grain of truth here, but it distracts from the more important points.

(a) Authority is ultimately responsible for any action taken by any and all of its soldiers. From the comfort of their offices, they have put guns into the hands of kids and sent them into danger. Do not believe that authority is stupid enough to be unable to see the inevitability of the unpredictable.

(b) The upper reaches of authority had procured legal advice on the legal defensibility of various types of “coercion”.  Authority may claim that perpetrators (soldiers and interrogators) were acting without orders. Rumsfeld (head of Defence Department) jeered: “Did I authorize soldiers to put underwear on that guy’s head? Of course not.”

The creativity of the soldiers at Abu Grahib (and elsewhere to be sure) was impressive. Just as the Torture Memo advised, they were – while avoiding doing x,y or z – doing whatever came into their heads.

(c) Imaginative, yes, but I can’t believe that soldiers weren’t guided in the types of coercion would be particularly suitable.

The military employs cultural advisors who advise it on how to avoid accidentally offending the locals. No one asked of them the inverse question?

The creativity of soldiers may have been impressive, but did they just happen to focus on  nudity, homosexuality, gender bending, submission to women and sexual exposure? In the case of Omar Khadr, it was admitted that interrogators had threated to arrange to have him gang raped. We know from elsewhere that dogs were brought in with the advice of culture wonks that Arabs (more correctly, Muslims) are taught that they are taboo, and are often very fearful of them.

There is an absurd limit to this line of argument. Its odd to imagine that even a Dutch combatant wouldn’t be bothered by being held naked with woman’s underwear on his head, simulating oral sex for the amusement of his captors, being threatened with rape by a dog.  But if US soldiers were interrogating Dutch detainees, I would not be surprised to see them following advice to mock their shoes, and the foul taste of Heineken.

(5)

As has been noted elsewhere, notice that the memo is dated March of 2003… well after the “enhanced interrogation” methods were already in use.

(6) “Why don’t we read history?”   (Robert Fisk)

detainee in a stress position known as a "Palestinian Hanging"

the same technique, used here by the S.S. at Buchenwald

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