On February 19, the Department of Justice released the long-awaited 261-page Report of the Office of Professional Responsibility (OPR), which concluded, among other things, that in his legal memos on torture and Presidential power, John Yoo had "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice." A senior Justice Department official, acknowledged that he had not reviewed all the documents available to the OPR, found that Yoo exercised "poor judgment" and that Yoo's memos were "flawed," "one-sided and conclusory" and "wrong," in various respects, but nevertheless declined to accept the report or refer Yoo for disciplinary action, leaving this decision to the state bars.
Given what we now know, here is the memo John Yoo should have submitted to President George W. Bush:
Standards of Conduct for Interrogation Under 18 U.S.C. Sections 2340-2340A
Submitted by the Department of Justice Office of Legal Counsel (OLC) to Alberto R. Gonzales, White House Counsel
August 1, 2002
In the wake of the heinous and unprovoked attacks on the United States on Sept. 11, 2001, the Central Intelligence Agency (CIA) and other agencies of the U.S. government initiated investigations into those events. The CIA has asked us to provide a legal analysis on what standards of conduct govern their interrogations of persons taken into custody as part of these investigations. In particular, the CIA has asked us to define the scope of the term 'torture" and whether certain methods of enhanced interrogation, including but not limited to the practice known as "waterboarding," are lawful under applicable law.
It is well-established that at the OLC, "we strive in our opinions for clarity and conciseness in the analysis and a balanced presentation of arguments on each side of an issue....OLC's interest is simply to provide the correct answer on the law, taking into account all reasonable counterarguments, whether provided by an agency or not."
The courts have frequently observed that the government has an overriding obligation to see that justice is done, and that such an overriding obligation imposes an expectation of even greater candor on government counsel than attorneys representing private parties. See, e.g., Berger v United States, 295 U.S. 78, 88 (1935).
Furthermore, lawyers at the OLC must conduct themselves consistent with the Model Rules of Professional Responsibility, which require that "a lawyer shall exercise independent professional judgment and render candid advice." Rule 2.1.
The OLC is mindful that by giving advance advice, it is our most solemn duty to resist any temptation or pressure to dispense get-out-of-jail-free cards by immunizing government officials where in our independent and candid judgment the law does not sustain such a legal conclusion. We do a great disservice to the President and to the Constitution by merely offering subservient opinions which dutifully rubber-stamp the wishes of the President or any agency to act in a pre-ordained manner regardless of whether it is lawful.
Torture Is Unlawful Under American Law and Waterboarding Is Torture
Torture has not been deemed available or acceptable as an interrogation tool in the Anglo-American legal tradition since well before the drafting of the U.S. Constitution. Torture is expressly prohibited by federal statute, 18 U.S.C Sections 2340-2340A and under the Convention Against Torture and Cruel, Inhumane and Degrading Treatment and Punishment ("CAT"). Torture means "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." The statute contains detailed definitions of the key terms.
Insisting that the CIA and other agencies scrupulously forebear from torture is dictated by the fact that "the right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens." Siderman de Blake v Republic of Argentina, 965 F. 2d 699, 717 (9th Cir.), cert denied, 507 U.S. 1017 (1993).
The Torture Statute applies to the President's detention and interrogation of detainees and is not rendered inapplicable by reason of his role as Commander in Chief. Under the Constitution, the President must "take care that the laws be faithfully executed" and takes an oath to "preserve, protect and defend the Constitution of the United States." The President serves the best interests of the Nation by setting a high standard of fidelity to the Rule of Law, as an example to the world that even in times of crisis or war, the United States will not sacrifice strict adherence to our Constitution and our laws in the name of national security. See, e.g. Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579 (1952).
Only five months ago, on March 13, 2002, our Office issued an opinion to the Department of Defense confirming that the Torture Statute "applies to official conduct engaged in by United States military personnel." It would violate our professional and ethical responsibilities to ignore our own very recent opinion in this regard.
No memorandum discussing torture would be complete and accurate without pointing out that under Article 2(2) of CAT "[n]o exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture." Consequently, we must advise the CIA in no uncertain terms that general criminal defenses such as "necessity" or "self defense" would not be available were a CIA agent to be charged with violating the Torture Statute.
Turning to the specific practice of waterboarding, i.e. the use of water to induce the sensation of drowning and suffocation in a detainee, the U.S. government has historically condemned various forms of water torture and has punished those who applied it, including Japanese soldiers in World War II and American soldiers during the American occupation of the Philippines after the 1898 Spanish-American War. In the litigation against Philippine President Ferdinand Marcos, the "water cure" was found to be both "a human rights violation" and a "form of torture." In United States v Carl Lee, 744 F. Ed 1124 (5th Cir. 1984) four Texas police officers were convicted of civil rights violations for coercing confessions from prisoners by use of "water torture."
Accordingly, to put it simply and clearly so as to leave no doubt, the CIA is expressly advised that waterboarding is torture prohibited under U.S. and international law.
As we approach the one year anniversary of the horrifying events of September 11, sufficient time has passed to allow our Office to conduct the kind of calm and sober analysis that the Executive Branch has come to expect of us. Indeed, no immediate crisis or level of fear excuses the lawyers in the OLC from providing our most independent, complete and candid advice.
We are well aware that some in the CIA, in the Executive Branch and indeed, in the country anticipated that we would find a way to issue an opinion narrowly construing the prohibition on torture so as to authorize a wide range of "enhanced interrogation techniques," including waterboarding. They will be disappointed in this opinion.
The lessons of history as reflected in the development of American law have taught us time and again that our Nation is most shamed when in times of crisis, foreign and domestic, those who knew better were driven by fear, ambition or currying favor with those in authority to shape their judgments to fit immediate political imperatives regardless of the dictates of the law.
To respect the honorable traditions of the Office of Legal Counsel and to truly serve the President, this opinion reflects our independent professional assessment of the legal issues we have addressed. To do otherwise would ensure that someday in the not to distant future, the legal counsel responsible for this memo would stand in shame before the American people for having betrayed them and the Constitution.
Deputy Assistant Attorney General
Stephen Rohde, a constitutional lawyer, is Chair of the American Civil Liberties Union Foundation of Southern California and author of “American Words of Freedom" and "Freedom of Assembly.”
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