Yoo’s justification of torture (Memo of March 14, 2003) is a house built on a legal foundation of sand: a President unfettered in the conduct of war, including interrogations. Waiving the objection that the “war on terror” is not a “war” in the sense originally intended by the Framers, which has been thoroughly explicated elsewhere, Yoo’s construct is utterly unsupportable, and barely allowable as a defense of someone being tried for torture, let alone as legal advice for someone contemplating torture.
I. Can Congress Regulate the “Conduct of Warfare”?
From the first, Yoo’s premises are astounding. “Congress cannot interfere with the President’s exercise of his authority as Commander in Chief to control the conduct of operations during a war.” At 13. In his opening argument, he stumbles irretrievably:
. . . . The decision to deploy military force in the defense of U. S. interests is expressly placed under Presidential authority by the Vesting Clause, U.S. Const. art. I, § 1, cl. 1, and by the Commander-in-Chief Clause, id., § 2, cl.1. The Framers understood the Commander-in-Chief Clause to grant the President the fullest range of power recognized at the time of the ratification as belonging to the military commander. In addition, the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive—which includes the conduct of warfare and the defense of the nation—unless expressly assigned to Congress, is vested in the President. Article II, Section 1 makes this clear by stating that the “executive Power shall be vested in a President of the United States of America.” That sweeping grant vests in the President the “executive power” and contrasts with the specific enumeration of the powers —those “herein”—granted to Congress in Article I. Our reading of the constitutional text and structure are confirmed by historical practice, in which Presidents have ordered the use of military force more than 100 times without congressional authorization, and by the functional consideration that national security decisions require a unity in purpose and energy that characterizes the Presidency alone.
Yoo feigns astounding ignorance of what constitutes Executive power. Executive power is not vested in the President “unless expressly assigned to Congress”. Article II makes the President Commander-in-chief and grants the specific powers to make treaties, and appoint and receive ambassadors, which in practice constitute broad power in the conduct foreign affairs. The President’s other power is to execute laws passed by Congress. Thus in the domestic sphere, the limitation on Congressional power, indicated by the “specific enumeration of the powers” granted to it, is also a limitation on the Executive power. The president may not create a national monument, arrest someone transporting a minor across state lines for immoral purposes, or tax workers to subsidize the elderly, unless authorized to do so by Congress.
In foreign affairs and the “conduct of warfare”, on the other hand, the President’s powers are not restricted to carrying out acts passed by Congress. However, the Constitution specifically limits the President’s power as Commander-in-Chief. Leaving aside the power to declare war, Article I, § 8 grants Congress the power generally to “to make Rules for the Government and Regulation of the land and naval forces” (cl. 15) and specifically to “make Rules concerning Captures on Land and Water” (cl. 11)(1). The question, then, is whether interrogation methods can be regulated by such “rules”, or whether they fall through the cracks into some category which Congress cannot regulate. Unfortunately for Yoo, he has failed to see the banana peel, for the question, as he poses it, was answered by the Supreme Court long ago. In Ex Parte Quirin, 317 U.S. 1 (1942), Chief Justice Stone wrote,
The Constitution confers on the President the “executive Power”, Art II, 1, cl. 1, and imposes on him the duty to “take Care that the Laws be faithfully executed”. . . .
The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.
Case Law
Yoo purports to find unlimited Executive authority to “conduct warfare” in Johnson v. Eisentrager, 339 U.S. 763, 789 (1950), which held that the “president has authority to deploy United States armed forces ‘abroad or to any particular region’”). Yoo, footnote 6. Not a remarkable conclusion, and it certainly doesn’t answer the question, Can Congress regulate interrogations?
“The ultimate question in this case is one of jurisdiction of civil courts of the United States vis-a-vis military authorities in dealing with enemy aliens overseas.” Eisentrager at 765. Congressional power to restrict deployments abroad, let alone to regulate interrogations, thus not being at issue, Yoo is reduced to relying on dicta, if he can find any. But turning to the full relevant text surrounding Yoo’s quote, we find that he has fallen off a cliff. This text is part of a discussion of paragraph (b) of the petition before the Court: “In the absence of hostilities, martial law, or American military occupation of China, and in view of treaties between the United States and China dated February 4, 1943, and May 4, 1943, and between Germany and China, dated May 18, 1921, the Military Commission was without jurisdiction.” At 785–786. In discussing this paragraph, Justice Jackson wrote,
We can only read “(b)” to mean either that the presence of the military forces of the United States in China at the times in question was unconstitutional or, if lawfully there, that they had no right under the Constitution to set up a Military Commission on Chinese territory. But it can hardly be meant that it was unconstitutional for the Government of the United States to wage a war in foreign parts. Among powers granted to Congress by the Constitution is power to provide for the common defense, to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. Art. I, §8, Const. It also gives power to make rules concerning captures on land and water, ibid., which this Court has construed as an independent substantive power. Brown v. United States, 8 Cranch [12 U.S.] 110, 126. Indeed, out of seventeen specific paragraphs of congressional power, eight of them are devoted in whole or in part to specification of powers connected with warfare. The first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. Art. II, 2, Const. And, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution.
Certainly it is not the function of the Judiciary to entertain private litigation—even by a citizen—which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region. China appears to have fully consented to the trial within her territories and, if China had complaint at the presence of American forces there, China’s grievance does not become these prisoners’ right. The issue tendered by “(b)” involves a challenge to conduct of diplomatic and foreign affairs, for which the President is exclusively responsible. . . .
Still in footnote 6, Yoo cites Maul v. United States, 274 U.S. 501, 515–16 (1927): “president ‘may direct any revenue cutter to cruise in any waters in order to perform any duty of the service’” (quoting Brandeis and Holmes, concurring). This cite is particularly inapt. Waiving the objection that this is the opinion of only two justices, we first present the entire relevant text:
When the Revenue Cutter Service was established, its duties were limited to the protection of the revenues. In 1793, the duty of enforcing also the navigation laws was imposed. Thereafter, from time to time, the duty of enforcing many other laws relating to transactions involving marine operations were added. Revenue cutters became thus America’s civil ocean patrol. But their service is not limited to enforcing our municipal law. They have been employed also in protecting the lives and property of Americans against foreigners in international controversies falling short of war; and they have served during wars in operations against the enemy. Revenue cutters are armed cruisers. Naval discipline, drill, and routine prevail on all the ships. Their officers are commissioned, and their men enlisted, like officers and men in the Army, Navy, and Marine Corps. The Secretary of the Treasury assigns them to a particular vessel, and the vessel is usually assigned to a particular station. But he may make such transfer of an officer from one vessel to another, and of the vessel from one station to another, as he deems desirable. Both the Secretary of the Treasury and the President may direct any revenue cutter to cruise in any waters in order to perform any duty of the service. Wiley v. United States, 40 Ct. Cl. 406; Act of April 21, 1910, c. 182, 2, 36 Stat. 326 (Comp. St. 8459 1/2 b(46)); Regulations of Coast Guard (1923), art. 101.
From Fleming v. Page, 50 U.S. 603, 614–15 (1850): Yoo quotes: “As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual.” But the full relevant text of this passage does not defend the President’s power against attempted Congressional legislation, rather it states a limitation on executive power:
A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy’s country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power.
Yoo goes on to Loving v. United States, 517 U.S. 748, 776 (1996): “The ‘inherent powers’ of the Commander in Chief ‘are clearly extensive’” (quoting Scalia, concurring in part and concurring in judgment). There, a convicted soldier facing the death penalty for a crime committed in peacetime challenged procedures for identifying aggravating factors, on the ground that they were implemented by executive order rather than by statute. At 754. The question was then whether Congress had authority to delegate such a decision to the Executive Branch. The answer was yes: “Under Clause 14 [of Art. I, § 8], Congress, like Parliament, exercises a power of precedence over, not exclusion of, Executive authority.” At 767. Thus the Court’s opinion contradicts Yoo’s premise.
And the quote chosen by Yoo from Ex parte Vallandigham, 28 F.Cas. 874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (“in acting ‘under this power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion’”, italics added) by itself contradicts his premise.
Having wasted footnote 6 in his Quixotic quest, Yoo proceeds to similarly waste footnote 7. He writes,
Judicial decisions since the beginning of the Republic confirm the President’s constitutional power and duty to repel military action against the United States and to take measures to prevent the recurrence of an attack. As Justice Joseph Story said long ago, “[i]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws.” The Apollon, 22 U.S. (9 Wheat.) 362, 366–67 (1824).
It cannot, however, escape observation that this Court has a plain path of duty marked out for it, and that is to administer the law as it finds it. We cannot enter into political considerations on points of national policy or the authority of the government to defend its own rights against the frauds meditated by foreigners against our revenue system, through the instrumentality and protection of a foreign sovereignty. Whatever may be the rights of the government, upon principles of the law of nations, to redress wrongs of this nature, and whatever the powers of Congress to pass suitable laws to cure any defects in the present system, our duty lies in a more narrow compass, and we must administer the laws as they exist, without straining them to reach public mischiefs, which they were never designed to remedy. It may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws. Such measures are properly matters of state, and if the responsibility is taken, under justifiable circumstances, the legislature will doubtless apply a proper indemnity.
Apollon was a libel brought by a ship’s master for damages occasioned by an asserted illegal seizure, at 363. The Apollon was seized at the Spanish port of St. Joseph’s, at 365, which had been established by the Spanish as “a convenient depot, for the purpose of carrying on an illicit trade, in fraud of the revenue and navigation laws of the United States,” at 364. (There lies the inspiration for Story’s dictum.) Not only did an Admiralty Court award restitution to the ship’s owner, at 365, but the Government lost the libel case too. Story held that the act cited as authorizing the seizure in these circumstances could not be so interpreted without assuming that Congress intended to violate the law of nations—which the Court declined to do. At 369–371. Thus Apollon offers Yoo only the slenderest thread of speculative dictum.
Well, let’s try The Prize Cases:
If the President is confronted with an unforeseen attack on the territory and people of the United States, or other immediate, dangerous threat to American interests and security, it is his constitutional responsibility to respond to that threat with whatever means are necessary. See. e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862) (“If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. . .without waiting for any special legislative authority.”);. . . .
Similarly, United States v. Smith, 27 F. Cas. 1192, 1229–30 (C.C.D.N.Y. 1806) (No. 16,342) in which Circuit Justice Paterson wrote that regardless of statutory authorization, it is “the duty. . .of the executive magistrate. . .to repel an invading foe”, provides no support to Yoo.
Finally, there is “3 Story, Commentaries § 1485 (‘[t]he command and application of the public force. . .to maintain peace, and to resist foreign invasion’ are executive powers).” In this case, it is odd that Yoo does not quote the whole section, for it tends in his direction:
§ 1485. The command and application of the public force, to execute the laws, to maintain peace, and to resist foreign invasion, are powers so obviously of an executive nature, and require the exercise of qualities so peculiarly adapted to this department, that a well-organized government can scarcely exist, when they are taken away from it. Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand. Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power. Even the coupling of the authority of an executive council with him, in the exercise of such powers, enfeebles the system, divides the responsibility, and not unfrequently defeats every energetic measure. Timidity, indecision, obstinacy, and pride of opinion, must mingle in all such councils, and infuse a torpor and sluggishness, destructive of all military operations. Indeed, there would seem to be little reason to enforce the propriety of giving this power to the executive department, (whatever may be its actual organization,) since it is in exact coincidence with the provisions of our state constitutions; and therefore seems to be universally deemed safe, if not vital to the system.
Story clearly argues against Congressional meddling in the conduct of war. This argument is advanced in more detail by Hamilton in The Federalist(2) Number 70. Hamilton is concerned that there should be one chief magistrate, rather than any sort of executive council, but the argument is the same. The Executive branch requires “energy”, which “is essential to the protection of the community against foreign attacks.” At 451.
That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.
Stumbling on, the hapless Yoo returns again to Eisentrager: “The first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. And, of course, the grant of war power includes all that is necessary and proper for carrying those powers into execution.” At 788, Yoo memo at 5. It would seem that what is “proper” for executing his powers as Commander-in-Chief would not include that which is illegal.
Longing to pack more punch, Yoo asserts, “In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy.” Id. But, unable to cite any case law to back himself up, he tries the Prize Cases again.
The President’s complete discretion in exercising the Commander-in-Chief power has been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that whether the President “in fulfilling his duties as Commander in Chief’ had appropriately responded to the rebellion of the southern states was a question “to be decided by him” and which the Court could not question, but must leave to “the political department of the Government to which this power was entrusted.” See also Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874) (by virtue of the Commander-in-Chief Clause, it is “the President alone[] who is constitutionally invested with the entire charge of hostile operations.”).
This is a bald-faced distortion. “Appropriately responded” are Yoo’s words, as if torture could be included in an “appropriate response”. The opinion actually says,
Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. “He must determine what degree of force the crisis demands.” The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.
At issue in Hamilton was a required “payment of four cents per pound for a permit to purchase cotton in, and transport it from, the insurrectionary States during the late civil war.” Also at 77. The quoted text in its context is
Italics added. Hmm, I wonder why Yoo omitted “in the absence of Congressional action”. No I don’t. He’s a God-damned filthy liar, that’s why. It could hardly be more clearly stated that the President’s war powers may be circumscribed by Congress.Whether, in the absence of Congressional action, the power of permitting partial intercourse with a public enemy may or may not be exercised by the President alone, who is constitutionally invested with the entire charge of hostile operations, it is not now necessary to decide, although it would seem that little doubt could be raised on the subject.
II. Can Congress Regulate Captures?
Constitutional law
Clearly, then, Congress can regulate the “conduct of warfare”. Does this power encompass the specific power to regulate the interrogation of prisoners?
Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that would prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.
. . . . In our view, Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any argument that these statutes apply to persons under the direction of the President in the conduct of war.
It might be thought that Congress could enact legislation that regulated the conduct of interrogations under its authority to “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const art. I, § 8, cl. 14. The question whether Congress could use this power to regulate military commissions was identified and reserved by the Supreme Court. Ex Parte Quirin, 317 U.S. 1, 29 [sic; the relevant text is at 47] (1942).
Yoo is lying again. It is true that one passage identifies the question as immaterial:
We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents. For the Court is unanimous in its conclusion that the Articles in question could not at any stage of the proceedings afford any basis for issuing the writ. But a majority of the full Court are not agreed on the appropriate grounds for decision. Some members of the Court are of opinion that Congress did not intend the Articles of War to govern a Presidential military commission convened for the determination of questions relating to admitted enemy invaders and that the context of the Articles makes clear that they should not be construed to apply in that class of cases. Others are of the view that—even though this trial is subject to whatever provisions of the Articles of War Congress has in terms made applicable to “commissions”—the particular Articles in question, rightly construed, do not foreclose the procedure prescribed by the President or that shown to have been employed by the Commission. . . .
Quirin, at 46–48. But at least five Justices must have subscribed to Justice Stone’s statement, written for the Court:
The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.
Yoo is now out of ammunition, and it was all blanks anyway. On the other hand, there are some authorities to guide us in interpreting the “captures” provision. On June 19th, 1798, Rep. Albert Gallatin (PA) alluded to it on the floor of the House:
. . .although Congress has not the power to remove alien friends, it cannot be inferred, as had been objected, that it had not the power to remove alien enemies; this last authority resulted from the power to make all laws necessary to carry into effect one of the specific powers given by the Constitution. Among these powers is that of declaring war, which includes that of making prisoners of war, and of making regulations with respect to alien enemies, who are liable to be treated as prisoners of war. By virtue of that power, and in order to carry it into effect, Congress could dispose of the persons and property of alien enemies as it thinks fit, provided it be according to the laws of nations and to treaties.
Chief Justice Marshall, writing for the Court in Little v. Barreme, 6 U.S. 170 (1804), specifically rejected the notion that the President can act with respect to captures of vessels contrary to rules specified by Congress. An act “to suspend the commercial intercourse between the United States and France” authorized the seizure of American ships trading with France, but limited “that authority to the seizure of vessels bound or sailing to a French port”, at 177. The Secretary of the Navy issued orders which enjoined “the seizure of American vessels sailing from a French port,” raising the question, “Is the officer who obeys them liable for damages sustained by this misconstruction of the act, or will his orders excuse him?” At 178. After flirting with the idea that the obedience of military personnel to superiors’ orders might override the plain violation of the law, the other justices convinced Marshall “that the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.” At 179.
In Brown v. United States, 12 U.S. 110, 126 (1814), Marshall, holding that a Congressional declaration of war did not automatically grant the President authority over the persons of enemy aliens within the United States, incidentally subscribed to Congress’ power to regulate their “captures” generally:
. . . . “Congress shall have power”—“to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”
It would be restraining this clause within narrower limits than the words themselves import, to say that the power to make rules concerning captures on land and water, is to be confined to captures which are exterritorial. If it extends to rules respecting enemy property found within the territory, then we perceive an express grant to congress of the power in question as an independent substantive power, not included in that of declaring war.
The acts of congress furnish many instances of an opinion that the declaration of war does not, of itself, authorize proceedings against the persons or property of the enemy found, at the time, within the territory.
. . . . The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war.
The “act for the safe keeping and accommodation of prisoners of war,” is of the same character.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be, and he is hereby authorized to make such regulations and arrangements for the safe keeping, support and exchange of prisoners of war as he may deem expedient, until the same shall be otherwise provided for by law. . . .
Customary international law: sovereign’s prerogative to torture
Yoo turns to customary international law to block Congressional interference with the treatment of prisoners, but without seeming to realize it.
. . .the application of these statutes [generally-applicable ones] to the conduct of interrogations of unlawful combatants would deprive the sovereign of a recognized prerogative. Historically, nations have been free to treat unlawful combatants as they wish, and in the United States this power has been vested in the President through the Commander-in-Chief Clause.
This guy needs help. A sovereign, by definition, does what it wants, subject only to retaliation from other sovereigns. The use of the word “historically”, and the reference to a “power. . . vested in the President” make it likely that, by “recognized prerogative”, Yoo means behavior that was recognized as acceptable under the Law of Nations, at the time our Constitution was written. Unless otherwise specified, such prerogatives were implicitly incorporated in the President’s foreign affairs powers. Yoo goes on to “support” his claim that one of these “recognized prerogatives” was freedom “to treat unlawful combatants as” the sovereign wishes:
As one commentator has explained, unlawful belligerents are “more often than not treated as war or national criminals liable to be treated at will by the captor. There are almost no regulatory safeguards with respect to them and the captor owes no obligation towards them.” R. C. Hingorani, Prisoners of War 18 (1982) (emphasis added). See Ingrid Detter, The Law of War 148 (2d ed. 2000) (“Unlawful combatants. . .enjoy no protection under international law[”]); William Winthrop, Military Law and Precedents 784 (2d ed. 1920) (unlawful belligerents are “[n]ot. . .within the protection of the laws of war”); A. Berriedale Keith, 2 Wheaton’s Elements of International Law 716 (6th ed. 1929) (“irregular bands of marauders are. . .not entitled to the protection of the mitigated usages of war as practised by civilized nations”); L. Oppenheim, 2 International Law, § 254, at 454 (6th ed. 1944) (“Private individuals who take up arms and commit hostilities against the enemy do not enjoy the privileges of armed forces, and the enemy has, according to a customary rule of International Law, the right to treat such individuals as war criminals.”).(14)
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14 See also Alberico Gentili, 2 De Iure Belli Libri Tres 22 (1612) (John C. Rolfe translation 1933) (“malefactors do not enjoy the privileges of a law to which they are foes”); E. de Vattel, 3 The Law of Nations or the Principles of Natural Law 318 (1758) (Charles G. Fenwick translation 1916) (“The troops alone carry on the war and the rest of the people remain at peace. . . . [I]f the peasantry commit of their own accord any acts of hostility, the enemy treats them without mercy, and hangs them as he would robbers or brigands.”); Sir Robert Phillimore, 3 Commentaries Upon International Law 164 (2d ed. 1873) (listing “[b]ands of marauders, acting without the authority of the Sovereign or the order of the military commander,” “[d]eserters,” and “[s]pies” as examples of unlawful belligerents who “have no claim to the treatment of prisoners of War”); Sir G. Sherston Baker, 1 Halleck’s International Law 614–17 (4th ed. 1908) (noting distinction between lawful and unlawful belligerency and concluding unlawful combatants are “not entitled to the mitigated rules of modern warfare”); Pasquale Fiore, International Law Codified, § 1459, at 548 (1918) (“Any act of hostility, any armed violence against the person or property of the hostile sovereign or state and of its citizens, even though legitimate under the laws of war, shall be deemed unlawful and punishable according to ‘common’ law, if committed by one who is not properly a belligerent.”); id. § 1475, at 552 (“Armed bands committing hostile acts in time of war by engaging in operations on their own account and without authorization of the Government and, when necessary, concealing their identity as combatants, cannot invoke the application of the laws of war nor be recognized as belligerents.”).
But a species of armed enemies whose employment in a military capacity was not and could not be justified were the so-called “guerillas” of our late civil war. These were persons acting independently, and generally in bands, within districts of the enemy’s country or on its borders, who engaged in the killing, disabling and robbing of peaceable citizens or soldiers, in plunder and pillage, and even in the sacking of towns, from motives mostly of personal profit or revenge. Not being within the protection of the laws of war, they were treated as criminals and outlaws, not entitled upon capture to be held as prisoners of war, but liable to be shot, imprisoned, or banished, either summarily where their guilt was clear or upon trial and conviction by military commission. Numerous instances of trials, for “Violation of the laws of war,” of offenders of this description, are published in the General Orders of the years 1862 to 1866.
Enemy combatant? Enemy belligerent?
First, some housekeeping. Yoo and his authorities use the terms “belligerent” and “combatant”. Even the 4th Hague Convention of 1970 uses “belligerent” where “lawful combatant” would have been better.(6) A “belligerent” is “any person, group, or nation engaged in war or fighting.” Webster’s New Twentieth Century Dictionary.(7) See also The Prize Cases, 67 U.S. 635, 666–667 (1862). That is, a belligerent may or may not be a combatant, the best definition of which is currently Article IV of the 3d Geneva Convention, which defines who qualifies as a prisoner of war. It is axiomatic that only combatants qualify as prisoners of war:
Article 4 is in a sense the key to the Convention, since it defines the people entitled to be treated as prisoners of war. It was therefore essential that the text should be explicit and easy to understand. In addition, the experience gained during the Second World War had to be taken into account, and reference made to certain categories of combatants in terms which would leave no room for doubt.
The descriptions provided by the cited authorities reveal that those so miscreant as to be bereft of the protections of the Law of War include “irregular bands of marauders”, “private individuals”, “malefactors”, “bands of marauders” acting without authority, and those who kill civilians, plunder and pillage for personal profit or revenge. We quickly see that “belligerent” is the proper term to use in this part of our discussion, because these descriptions cannot possibly be applied to combatants. A belligerent, on the other hand, is simply a member of the society which is at war, and the term could easily apply to the type of individuals described. We shall thus assume that Yoo means, “historically, nations have been free to treat non-combatant criminals, who are also enemy belligerents, as they wish”, and content ourselves with the term “non-combatant criminals”.(9)
Inefficacious authorities
Now for the real problems. If Yoo’s intent is describe the Law of War in 1789, his use of “authorities” who published in 2000, 1982, and 1944 is inexplicable, given that he quotes them as writing in the present tense. Aside from that, his first two “authorities” are marginal by internal evidence.
Detter’s claim(10) is controverted by Article 44, 2 of the First Protocol to the Geneva Conventions, which provides that:
While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.
A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.
Hingorani could have been Yoo’s mentor:
. . .all captured belligerent personnel fall in[to] one of the following three categories:
. . . .3. Hostile persons who are denied POW status, i.e. traitors, deserters, saboteurs, spies, etc.
. . . .the third category of personnel are more often than not treated as war or national criminals liable to be treated at will by the captor.29 There are almost no regulatory safeguards with respect to them and the captor owes no obligation towards them. . . .
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29 2 Oppenheim, International Law, (1957), 257.
All war crimes may be punished with death, but belligerents may, of course, inflict a more lenient punishment, or commute a sentence of death into a more lenient penalty. If this is done and imprisonment take the place of capital punishment, the question arises whether such convicts must be released at the end of the war, although their term of imprisonment has not yet expired. Some publicists answer this question in the affirmative, maintaining that if could never be lawful to inflict a penalty extending beyond the duration of the war. But I believe that the question has to be answered in the negative. If a belligerent has a right to pronounce a sentence of capital punishment, it is obvious that he may select a more lenient penalty and carry the latter out even beyond the duration of the war. And it would in no wise be in the interests of humanity to deny this right, for otherwise belligerents would have always to pronounce and carry out [a] sentence of capital punishment in the interest of self-preservation.
Yoo, of course, ignores this section of Oppenheim, preferring to quote a section that is, in common with Detter’s passage, contradicted by treaty law (“Private individuals who take up arms and commit hostilities against the enemy do not enjoy the privileges of armed forces, and the enemy has, according to a customary rule of International Law, the right to treat such individuals as war criminals.”) But the 4th Hague Convention of 1907, Annex, article 2, provided that
The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.
Winthrop’s summary shooting is also obsolete. Common Article III(1)(d) of the Geneva Conventions prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.
Do these authorities sanction torture?
Leaving aside the modifications that international treaties have made in customary international law, we are left with the question, do any of these “authorities” indicate that torture was acceptable under this law in 1789? Yoo fails to cite any specific reference to it. Even Hingorani and Detter don’t specifically allow it. It seems that if they did, Yoo would have quoted them on it. Vattel’s peasantry acting of their on accord were specifically hanged, not tortured; Winthrop’s guerillas were summarily shot, not tortured. Winthrop would hardly include torture in the guerillas’ liabilities, given his opinion of it:
At an early period of the English law, in all capital cases except treason, if the prisoner stood mute, and the jury to which the question was referred, found that he did so from obstinacy or malice; or if he persisted in answering “foreign to the purpose;” he became liable to the “peine forte et dure,” a barbarous mode of punishment and torture not finally done away by legislation till the reign of Geo. III.
Speaking of Vattel, one finds in his work(11) just one occurrence of the word “torture”:
But, if it is a duty incumbent on the state to use her best efforts for procuring the release of the most inconsiderable of her citizens who has lost his liberty in the public cause, the obligation is much stronger in the case of her sovereign, whose cares, attention, and labours are devoted to the common safety and welfare. It was in fighting for his people that the prince who has been made prisoner, fell into that situation, which, to a person of his exalted rank, must be wretched in the extreme: and shall that very people hesitate to deliver him at the expense of the greatest sacrifices? On so melancholy an occasion, they should not demur at any thing short of the very existence of the state. But, in every exigency, the safety of the people is the supreme law; and, in so severe an extremity, a generous prince will imitate the example of Regulus. That heroic citizen, being sent back to Rome on his parole, dissuaded the Romans from purchasing his release by an inglorious treaty, though he was not ignorant of the tortures prepared for him by the cruelty of the Carthaginians.
Indeed, although Vattel and Grotius were well aware that torture occurred, it does not seem to have occurred to them that it could be used to elicit intelligence out of prisoners. This may not be so surprising. How many prisoners of war have actionable intelligence? Certainly not, in most cases, those that we now denote as “enlisted”. As for officers, it is well to remember that our modern ideas of the Law of War developed in the 18th and 19th centuries, when officers were “gentlemen” of the upper classes, who prided themselves on such virtues as keeping one’s word, even when it’s given to the enemy. The English loved to believe that their working classes emulated the upper classes in this respect. Jim Hawkins refused to jump a fence and escape from John Silver, solely because he had given his word that he would not:
“Jim,” the doctor interrupted, and his voice was quite changed, “Jim, I can’t have this. Whip over, and we’ll run for it.”
“Doctor,” said I, “I passed my word.”
“I know, I know,” he cried. “We can’t help that, Jim, now. I’ll take it on my shoulders, holus holus, blame and shame, my boy, but stay here, I cannot let you. Jump! One jump, and you’re out, and we’ll run for it like antelopes.”
“No,” I replied, “you know right well you wouldn’t do the thing yourself; neither you, nor [the] squire, nor [the] captain. . . .”(13)
Let us, in this particular, bestow on the European nations the praise to which they are justly entitled. Prisoners of war are seldom ill-treated among them. We extol the English and French; we feel our bosoms glow with love for them, when we hear the accounts of the treatment which prisoners of war, on both sides, have experienced from those generous nations. And what is more, by a custom which equally displays the honour and humanity of the Europeans, an officer, taken prisoner in war, is released on his parole, and enjoys the comfort of passing the time of his captivity in his own country, in the midst of his family; and the party who have thus released him, rest as perfectly sure of him, as if they had him confined in irons.
I have no information on how common this practice was, and an inquiry into it would be a digression. Any discrepancy between ideal and practice is immaterial here, for what matters is the conception held by the 18th-century European intellectual leaders, including our Founders, of their society, in which there was no room for one gentleman to torture another, even an enemy belligerent, to get intelligence. Dueling, yes, but not torture. That it was undoubtedly done somewhere, sometime, does not constitute a legal precedent.
Customary international law: efficacious or not?
Of course, Yoo changes the law as needed to suit his malicious agenda. He has used customary international law, or rather his perverted conception of it, to grant the President absolute freedom to torture prisoners for the purpose of extracting “intelligence”. But when he wants to dismiss the possibility of this law granting protection to victims of torture, he sings a different tune:
. . .even if customary international law on torture created a different standard than that which the Torture Convention creates, and even if such a standard were somehow considered binding under international law, it could not bind the President as a matter of domestic law. We have previously concluded that customary international law is not federal law.
It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns. An Act of Congress punishing “the crime of piracy as defined by the law of nations” is an appropriate exercise of its constitutional authority, Art. I, 8, cl. 10, “to define and punish” the offense since it has adopted by reference the sufficiently precise definition of international law. United States v. Smith, 5 Wheat. 153; see The Marianna Flora, 11 Wheat. 1, 40, 41; United States v. The Malek Adhel, 2 How. 210, 232; The Ambrose Light, D.C., 25 F. 408; 423, 428; 18 U.S.C. 481, 18 U.S.C.A. 481.(6) Similarly by the reference in the 15th Article of War to “offenders or offenses that. . .by the law of war may be triable by such military commissions”, Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war (compare Dynes v. Hoover, 20 How. 65, 82), and which may constitutionally be included within that jurisdiction. Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course.
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6 Compare 28 U.S.C. 41(17), 28 U.S.C.A. 41(17), conferring on the federal courts jurisdiction over suits brought by an alien for a tort “in violation of the laws of nations”; 28 U.S.C. 341, 28 U.S.C.A. 341, conferring upon the Supreme Court such jurisdiction of suits against ambassadors as a court of law can have “consistently with the law of nations”; 28 U.S.C. 462, 28 U.S.C.A. 462, regulating the issuance of habeas corpus where the prisoner claims some right, privilege or exemption under the order of a foreign state, “the validity and effect whereof depend upon the law of nations”; 15 U.S.C. 606b and 713b, 15 U.S.C.A. 606b, 713b, authorizing certain loans to foreign governments, provided that “no such loans shall be made in violation of international law as interpreted by the Department of States.”
But Yoo writes with the supreme confidence of one who believes he will never face justice. He continues,
Even if one were to accept the notion that customary international law has some standing within our domestic legal system, the President may decide to override customary international law at his discretion. “It is well accepted that the political branches have ample authority to override customary international law within their respective spheres of authority.” Id. at 34 (discussing The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812) and Brown v. United States, 12 U.S. (8 Cranch) 110 (1814)); The Paquete Habana, 175 U.S. 677 (1900). Our Office has made clear its agreement with these Supreme Court cases that the President can unilaterally order the violation of customary international law.
Chief Justice Marshall, delivering the opinion of the Court in The Schooner Exchange, and referring to the general exemption of persons such as ambassadors from the law of the host sovereign, wrote:
The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers.
This consent may, in some instances, be tested by common usage, and by common opinion, growing out of that usage. A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.
Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise.
In Brown v. United States, Marshall, again writing for the Court, might at first glance appear to be taking a different position from that he held in The Schooner Exchange, but the two cases are easily distinguished. In The Exchange, the sovereign’s compliance with customary international law was passive; in Brown, a positive action had been taken consonant with customary international law, but the Court held that the action required legislative authorization. The question was whether a declaration of war incorporated authorization to seize enemy property. At 123. The Court ruled emphatically that it did not. At 127. Customary international law was implicated, because it was contended that such law did not authorize seizure of enemy property that lay within the jurisdiction of the sovereign at the outbreak of hostilities. Marshall held that this made no difference:
It is urged that, in executing the laws of war, the executive may seize and the Courts condemn all property which, according to the modern law of nations, is subject to confiscation, although it might require an act of the legislature to justify the condemnation of that property which, according to modern usage, ought not to be confiscated.
This argument must assume for its basis the position that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power. This position is not allowed. This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.
The rule is, in its nature, flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political considerations which may continually vary.Commercial nations, in the situation of the United States, have always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of our citizens. Like all other questions of policy, it is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary.
It appears to the Court, that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war. The Court is therefore of opinion that there is error in the sentence of condemnation pronounced in the Circuit Court in this case, and doth direct that the same be reversed and annulled, and that the sentence of the District Court be affirmed.
It should be noted that the second and third paragraphs of this passage, if quoted by themselves, could have been employed by Yoo as another deceit in “support” of his derogation of customary international law. But from it’s entirety, it could not be more clear that it is the legislature, not the President, which has the power to change such law. After all, any first-year law student knows that customary international law is none other than a form of the common law, which the legislature can change at will.
In the The Paquete Habana, the question was whether bona fide fishing vessels were exempt from capture during the Spanish-American War. There seemed to be no written law at all to guide the Court:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.
III. Federal criminal law
Applicability to the conduct of warfare
Having falsely, maliciously and in bad faith “established” that the President has “complete discretion in the exercise of his Commander-in-Chief authority in conducting operations against hostile forces,” at 11, Yoo postulates a presumption that generally applicable statutes do not apply to the President’s conduct of war, including torture:
In light of the President’s complete authority over the conduct of war, in the absence of a clear statement from Congress otherwise, we will not read a criminal statute as infringing on the President’s ultimate authority in these areas. We presume that Congress does not seek to provoke a constitutional confrontation with an equal, coordinate branch of government unless it has unambiguously indicated its intent to do so. The Supreme Court has recognized. . .a canon of statutory construction that statutes are to be construed in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available. . . . This canon of construction applies especially where an act of Congress could be read to encroach upon powers constitutionally committed to a coordinate branch of government. . . .
In the area of foreign affairs, and war powers in particular, the avoidance canon has special force. Federal courts similarly have agreed that federal statutes should not be read to interfere with the Executive Branch’s control over foreign affairs unless Congress specifically and clearly seeks to do so. See, e.g., Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988) (“unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”); Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 232–33 (1986) (construing federal statutes to avoid curtailment of traditional presidential prerogatives in foreign affairs).
The underlined qualification clearly indicates that, at least in some areas, Congress can restrict the President’s conduct of foreign affairs. Aside from that, Navy does not support Yoo. While Yoo’s premise requires a statute to be construed in such a way as to avoid a constitutional conflict, the cited text from Navy does not refer to the possibility of such a conflict. Rather it clearly indicates that in cases such as the one at hand, the courts would not take the lead in circumscribing the Executive’s authority, but would follow Congress’ lead in doing so. In fact, Navy doesn’t even address the applicability of general legislation to Executive Branch actions. The question was “whether the Merit Systems Protection Board. . .has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action.” At 520. The Court, considering “generally the statute’s ‘express language’ along with ‘the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved,’” held that it did not. At 530, quoting Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984); see also 525–526. While the Court also considered the President’s prerogative in classifying national-security-related information, independent of any Congressional authorization, at 526–530, the opinion cannot rationally be read as limiting Congress’ authority to legislate in areas relating to foreign affairs.
Likewise in Japan Whaling, where the Court did not hold that a statute which applied generally could not be extended to the President’s conduct of foreign affairs. Rather, the question was whether the statute required the Secretary of Commerce to certify that Japan’s whaling policy “diminishes the effectiveness of the International Convention for the Regulation of Whaling,” at 226. The Court held that the statute did not.
Yoo continues,
Courts will not lightly assume that Congress has acted to interfere with the President’s constitutionally superior position as Chief Executive and Commander in Chief in the area of military operations. See Egan, 484 U.S. at 529 (quoting Haig v. Agee, 453 U.S. 280, 293–94 (1981)).
Yoo continues, “See also Agee, 453 U.S. at 291 (deference to executive branch is ‘especially’ appropriate ‘in the area. . .of. . .national security’).” But in Agee, the question was not whether a restrictive statute did not apply to the President’s conduct of war, but rather whether a statute granting “broad rule-making authority”, at 291, to the Secretary of State allowed the Secretary to revoke a passport on grounds not explicitly allowed. Not surprisingly, the answer was “yes”.
Yoo cites a statute that explicitly applies to military personnel, purportedly to show that otherwise, Congress would not intend it to apply to them. Of course, he has to lie to accomplish his goal:
where Congress intends to apply statutes to the conduct of our military it has done so far more clearly than by requiring the individuals act “under color of law.” For example, the War Crimes Statute, 18 U.S.C. § 2441 applies to the conduct “any member of the Armed Forces of the United States.” 18 U.S.C. § 2441 (b).
Yoo sums up with an argument so absurd and contrary to the law that, by itself, it is grounds for prosecution:
. . .unless “Congress by a clear and unequivocal statement declares otherwise”[,] a criminal statute should not be construed to apply to the properly authorized acts of the military during armed conflict. . . . This canon of construction is rooted in the absurdities that the application of such laws to the conduct of the military during a war would create. If those laws were construed to apply to the properly-authorized conduct of military personnel, the most essential tasks necessary to the conduct of war would become subject to prosecution. A soldier who shot an enemy combatant on the battlefield could become liable under the criminal laws for assault or murder; a pilot who bombed a military target in a city could be prosecuted for murder or destruction of property; a sailor who detained a suspected terrorist on the high seas might be subject to prosecution for kidnapping.
Applicability to the Sovereign
It is also a canon of construction that laws of general applicability are not read to apply to the sovereign. In United States v. Nardone [sic; Nardone v. United States], 302 U.S. 379 (1937), the Supreme Court explained its application: (1) where it “would deprive the sovereign of a recognized or established prerogative title or interest,” id. at 383; or (2) “where a reading which would include such officers would work obvious absurdity[,]” id. at 384. As the Court explained, “[a] classical instance” of the deprivation of a recognized or established prerogative title or interest “is the exemption of the state from the operation of general statutes of limitation.” Id. at 383.
The second exception recognized by the Supreme Court arises where the application of general laws to a government official would create absurd results, such as effectively preventing the official from carrying out his duties. In Nardone, the Supreme Court pointed to “the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm” as examples of such absurd results. Nardone, 302 U.S. at 384. See also United States v. Kirby, 74 U.S. (7 Wall.) 482, 486–87 (1868) (holding that statute punishing obstruction of mail did not apply to an officer’s temporary detention of mail caused by his arrest of the carrier for murder). In those situations and others, such as undercover investigations of narcotics trafficking, the government officer’s conduct would constitute a literal violation of the law. And while “[g]overnment law enforcement efforts frequently require the literal violation of facially applicable statutes[,]. . .courts have construed prohibitory laws as inapplicable when a public official is engaged in the performance of a necessary public duty.” Memorandum for Maurice C. Inman, Jr., General Counsel, Immigration and Naturalization Service, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Visa Fraud Investigation at 2 (Nov: 20, 1984). Indeed, to construe such statutes otherwise would undermine almost all undercover investigative efforts. See also id. For the reasons we explain above, the application of these general laws to the conduct of the military during the course of a war would create untenable results.
We first note a sentence in Nardone that Yoo omitted: “The rule of exclusion of the sovereign is less stringently applied where the operation of the law is upon the agents or servants of the government rather than on the sovereign itself.” At 383, footnote omitted. Better had Justice Roberts said “disfavored” rather than “less stringently applied”. Consider his inapt example. An important public safety interest informs the states’ speed limits, with respect to emergency as well as non-emergency vehicles. The Legislature should weigh exemptions for emergency vehicles, balancing the competing public interests. See for example N.J.S. 39:4-103, explicitly allowing higher speeds. The same argument would apply to the use of deadly force. Accordingly, New Jersey specifically provides for its use by “a public officer justified in using force in the performance of his duties,” N.J.S. 2C:3-4(b)(2)(B)(ii). Other states should also. Likewise for undercover police activities. Proper legislative consideration of these questions would, if not already undertaken, reduce the application of the rule of exclusion.
Where there is no specific exemption for public officials, an intent requirement may remove the action from the scope of the rule of exclusion. This was the case in Kirby, where the court noted that “The statute of Congress by its terms applies only to persons who ‘knowingly and willfully’ obstruct or retard the passage of the mail, or of its carrier; that is, to those who know that the acts performed will have that effect, and perform them with the intention that such shall be their operation.” At 485–486. Although Justice Field noticed the absurdity principle (“General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence”), the statute’s intent requirement was dispositive by itself.(17)
Unlike most general laws, the torture statute applies exclusively to those acting “under color of law,” 18 U.S.C. § 2340(1); that is, it applies only to agents of the sovereign. There being no further statutory exclusions, the question is whether the rule of exclusion operates to protect military personnel who torture of prisoners for the purpose of extracting information about planned terrorist attacks. Although this question implicates the efficacy of torture, we need not prove inefficacy to disallow the rule’s operation; we need only show a non-absurd result. “Absurdity” is a low bar, akin to the “arbitrary and capricious” standard. At least three considerations are each sufficient, standing alone, to disallow operation of the rule of exclusion:
· Voluminous scholarly and anecdotal evidence bearing on the inefficacy of torture. This evidence has been widely discussed; here, we will only quote the continuation of Blackstone’s above-quoted comments:
It seems astonishing that this usage, of administring the torture, should be said to arise from a tenderness to the lives of men: and yet this is the reason given for it’s introduction in the civil law, and it’s subsequent adoption by the French and other foreign nations: viz. because the laws cannot endure that any man should die upon the evidence of a false, or even a single, witness; and therefore contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession. Thus rating a man’s virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves! But there needs only to state accurately, in order most effectually to expose, this inhuman species of mercy: the uncertainty of which, as a test and criterion of truth, was long ago very elegantly pointed out by Tully; though he lived in a state wherein it was usual to torture slaves in order to furnish evidence: “tamen,” says he, “illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum corporis, regit quaesitor, flectit libido, corrumpit spes, infirmat metus; ut in tot rerum angustiis nihil veritati loci relinquatur.”
A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.
· The absolute prohibition on torture in the Geneva Conventions. Common Article III (1) not only prohibits summary executions, it prohibits, among other things,
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.
. . . .
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment.
· A sovereign people’s right to choose to accept the risk of not getting the intelligence, in order not to descend to the ranks of the barbarians.
Disallowing the rule of exclusion being not absurd on three independent grounds, it is incontrovertible that the statute generally prohibiting torture by agents of the Sovereign applies specifically to military personnel who torture for the purpose of extracting information about planned terrorist attacks.
Specific Governs the General
The canon of construction that specific statutes govern general statutes also counsels that generally applicable criminal statutes should not apply to the military’s conduct of interrogations in the prosecution of a war. Where a specific statute or statutory scheme has been enacted, it and not a more general enactment will govern. See, e.g., Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987).
The specific statute doesn’t automatically govern. The Criminal Yoo deliberately, maliciously, and with intent to deceive, omits critical information. “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Morton v. Mancari, 417 U.S. 535, 550–551 (1974), underlining added. Morton is quoted by Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976), which is in turn quoted by Crawford, cited above by Yoo—not quoted, mind you, as that would spoil his attempted deception.
Morton considered the effect of an amendment to the Civil Rights Act of 1964. The 1964 act prohibited discrimination in private employment on the basis of “race, color, religion, sex, or national origin,” 42 U.S.C. §2000e-2(a), but “explicitly exempted from its coverage the preferential employment of Indians by Indian tribes or by industries located on or near Indian reservations.” At 545. The Equal Employment Opportunity Act of 1972, “amended the 1964 Act and proscribed discrimination in most areas of federal employment.” At 546–547. It did so by merely amending the definition of “person” in §2000e, by adding to the list of entities that are “persons” for the purposes of the Act “governments, governmental agencies, political subdivisions.” The Court held that the amended Act retained the Native American exemption. Although the Court enumerated various supporting considerations, this should have been a no-brainer. Expanding the list of entities covered, in the absence of other revisions, clearly applies all of an act’s features, including exemptions, to the new entities. This is not an example of the specific governing the general.
The question in Crawford was whether 28 U.S.C. §1920, which provided that “A judge or clerk of any court of the United States may tax as costs the following. . . . (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title,” allowed the court to tax as a cost a higher fee than that specified in §1828—§1920 referring to fees only generally, without specifying amounts. At 441. This also is not an example of the specific governing the general—indeed, it is the opposite—§1920 is very specific, by incorporating specific provisions of another statute: “may tax. . .fees. . .under section 1828. . . .”
Any statute providing that “no person” shall do an act is generally applicable, and if it is qualified by words such as “any other provision of law notwithstanding”, it meets the “clear intention otherwise” requirement. (We need not complicate our discussion with case in which that qualification is missing.) For example, if an earlier statute specified that certain individuals could wiretap under certain conditions, and a later one specified that “no person shall wiretap, any law otherwise notwithstanding”, the later statute would clearly govern. On the other hand, if the qualification is to the effect of “unless otherwise provided by law”, the specific grant of authority in the earlier statute is preserved.
None of this applies to the torture statute, for in no other statute is torture specifically authorized. Realizing he has suffered another strike-out, Yoo advances so patently an absurd an application of the specific-governs-the-general principle that by itself it is grounds for prosecution:
Here, the UCMJ provides a detailed regulatory regime for the conduct of military personnel apart from the federal criminal code. Congress enacted the UCMJ pursuant to its constitutional authority “[t]o make Rules for the government and Regulation of the land and naval Forces.” U.S. Const. art. I, sec. 8, cl. 14. As the specific code of conduct, the UCMJ governs the conduct of the military during a war, not the general federal criminal laws.
Yoo’s argument is, of course, that the UCMJ exempts its subjects from the criminal code, because it is a “detailed regulatory regime” enacted under Congress’ specific power to “make Rules for the government and Regulation of the land and naval Forces.” This might have some force but for 10 U.S.C. §934:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.
At the time Winthrop wrote, this article was worded quite differently:
ART. 62. All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a general, or a regimental, garrison, or field-officers’ court-martial, according to the nature and degree of the offence, and punished at the discretion of such court.
But Yoo’s error continues. Even when the UCMJ specifies an offense which is also a civilian offense under a separate statute, the military does not have exclusive jurisdiction, and not necessarily even in wartime. In Caldwell v. Parker, 252 U.S. 376 (1920), the petitioner, a member of the military, sought a writ of habeas corpus, seeking release from state custody, having been convicted of murder in an place under the jurisdiction of the state, and not in any way under military jurisdiction. He claimed that, the United States being in a state of war with Germany at the time, and murder being an offense punishable by the Articles of War (as the UCMJ was then called), the state courts had no jurisdiction over him. At 380–381.
However, the Court held that generally, when acts which were criminal under state laws, such as murder, “became subject to military authority because they could also appropriately be treated as prejudicial to good order and military discipline, a concurrent power necessarily arose . . . .” At 381. This concurrent power was recognized by the 74th Article of War, the successor to which is codified at 10 U.S.C. §814, which made provision for handing over military personnel to civilian authorities. This “gave the civil courts, if not supremacy of jurisdiction, at least a primary power to proceed against military offenders violating the civil law, although the same acts were concurrently within the jurisdiction of the military courts because of their tendency to be prejudicial to good order and military discipline.” At 382.
The petitioner apparently relied heavily on the following passage from the 74th Article: “Any commanding officer who upon such application refuses or willfully neglects, except in time of war, to deliver over such accused persons to the civil authorities. . .shall be dismissed from the service or suffer such other punishment as a court-martial may direct.” At 385. However, this does not prohibit handing over a suspect in time of war; it merely directs punishment of an officer who refuses to hand one over in peacetime. Accordingly, said the Court,
considering these provisions, it is apparent that they contain no direct and clear expression of a purpose on the part of Congress. . .to bring about, as the mere result of a declaration of war, the complete destruction of state authority and the extraordinary extension of military power upon which the argument rests.
Yoo, if his work weren’t so slovenly, would raise the objection that Caldwell’s concurrent jurisdiction is not shared among multiple court systems under the same sovereign, but rather among multiple sovereignties—more precisely, the sovereign Federal government and the partially sovereign states. In other words, §814 only applies to violations of state law, not federal law.
However, this argument is without force. The Article of 1776, quoted in Caldwell at 384–385, was lifted nearly verbatim from the British articles of war of 1765, the only substantive change being the substitution of “the good people of any of the United American States” for “Our subjects”. Winthrop, at 937. The concurrent jurisdiction therefore, was not of necessity among multiple sovereignties, since that situation did not obtain in Great Britain. However, the American Article of 1776 had to refer to state courts, because, under the Articles of Confederation, there was not even a regular national court system to share concurrent jurisdiction with military courts.(19) And for a long time under the Constitution, crimes against “the good people”, that is crimes of violence, the type with which the Article was most concerned, were not federal crimes unless committed in a place such as a fort or arsenal, or on the high seas.(20) In that case they would be prosecuted by courts-martial anyway. But it would be absurd to argue that a soldier in 1791 could not be tried in an Article III court for, say, smuggling, or bribing a judge. It is equally absurd today to say that military personnel are immune from court action against them for torture.
Statutes
Military Extraterritorial Jurisdiction Act
Having wiped out on the UCMJ, Yoo latches on to 18 U.S.C. §3261: “The Military Extraterritorial Jurisdiction Act makes clear that it is the UCMJ—not the criminal code—that governs the conduct of the members of the Armed Forces.” At 17. He provides a somewhat accurate description of the Act, at 17. It reads, in relevant part,
(a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States—
(1) while employed by or accompanying the Armed Forces outside the United States; or
(2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice),
shall be punished as provided for that offense.
. . . .
(d) No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—
(1) such member ceases to be subject to such chapter; or
(2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter.
So far, so good. Then, Yoo appears to have begun typing in his sleep: “It could be argued that Congress specifically enacted section 3261 to extend special maritime and territorial jurisdiction crimes to the members of the Armed Forces and those accompanying or employed by them. Such a contention would, however, be incorrect.” At 17. Of course that would be incorrect. The section is awkwardly-structured, but nevertheless clearly extends special jurisdiction crimes to those “employed by or accompanying the Armed Forces outside the United States”, and in limited cases, military personnel.
But it gets worse. “Nothing in that provision, or its legislative history suggests an intention to impose general criminal liability on the military for properly-authorized acts undertaken in the prosecution of a war.” Id. Apparently forgetting that he’s done with the section on inherent powers of the commander-in-chief, he appears (we shall say charitably) to revert to the argument, already demolished, that the President may order prisoners to be tortured.
Now for another lie: “Rather, the legislative history reveals a desire to ensure that when persons accompanying or employed by the Armed Forces, acting solely in their personal capacity, commits a felony, they can be punished for those crimes.(15)” Id., emphasis added. In note 15, Yoo cites Reid v. Covert, 354 U.S. 1 (1957), in which a U.S. sergeant on a base in England was killed by his wife. But the statute contains no qualifications limiting the acts to be punished to those not committed in the course of official duties, and Yoo presents no “legislative history” to that effect, let alone case law. The fact that the legislation may have been prompted by acts done solely in the offenders’ personal capacities is not surprising—what Presidents, before Bush, have ordered torture? But such a consideration cannot override the clear language of the statute: “Whoever engages in conduct . . .”.
Special Maritime and Territorial Jurisdiction of the United States
Based on the statutory definition of this jurisdiction, 18 U.S.C. 7, Yoo claims that “. . .a federal, non-military officer who is conducting interrogations in a foreign location, one that is not on a permanent U.S. military base or diplomatic establishment, would not be subject to the federal criminal laws applicable in the special maritime and territorial jurisdiction.” At 21, emphasis added. However, §7(3) provides that the special jurisdiction includes
Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.
Next faux pas:
In limited circumstances, namely in time of war, persons employed by or accompanying the Armed Forces are subject to the UCMJ. See 10 U.S.C. § 802(a)(11) (2000) (providing that “persons serving with, employed by, or accompanying the armed forces outside the United States” are subject to the UCMJ). . . .
War Crimes
Section 2441 of Title 18 criminalizes the commission of war crimes by U.S. nationals and members of the U.S. Armed Forces. It criminalizes such conduct whether it occurs inside or outside the United States, including conduct within the special maritime and territorial jurisdiction. . . . Subsection (c) of section 2441 defines “war crimes” as. . .(3) conduct that constitutes a violation of common Article 3 of the Geneva Conventions. We have previously. . . .found that common Article 3 of the Geneva Conventions covers either traditional wars between state parties to the convention or non-international civil wars, but not an international conflict with a non-governmental terrorist organization [al-Qaeda]. As a result, conduct toward members of al Qaeda could not constitute a violation of common Article 3. . . .
There are only two types of conflicts in the Geneva Conventions: those “between two or more of the High Contracting Parties”, to which “the present Convention shall apply” (Common Article 2), and those “not of an international character” to which certain specified “minimum” provisions apply (Common Article 3). That Common Article 3 is intended to cover all cases not covered by Article 2 may be easily inferred from its history.
The ICRC Commentary on the Geneva Conventions notes that Common Article 3
marks a new step forward in the unceasing development of the idea on which the Red Cross is based. . . .
Up to 1949, the Geneva Conventions were designed to assist only the victims of wars between States. The principle of respect for human personality, the basis on which all the Conventions rest, had found expression in them only in its application to military personnel. Actually, however, it was concerned with people as human beings, without regard to their uniform, their allegiance, their race or their beliefs, without regard even to any obligations which the authority on which they depended might have assumed in their name or in their behalf.
There is nothing astonishing, therefore, in the fact that the Red Cross has long been trying to aid the victims of civil wars and internal conflicts, the dangers of which are sometimes even greater than those of international wars.
We think, on the contrary, that the scope of application of the Article must be as wide as possible. There can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, does not in any way limit the right of a State to put down rebellion, nor does it increase in the slightest the authority of the rebel party. . . . What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages? No Government can object to observing, in its dealings with enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, when dealing with common criminals.
Of course, the ICRC now has its answer: the American government! Given the purpose of Common Article 3, it is inconceivable that it would not cover a civil war merely because an outside power intervened. The United States intervened in a civil war in Afghanistan. Although the Taliban controlled most of the country, they were militarily opposed by the Northern Alliance, which had its own territorial base. Clearly, Common Article 3 protects prisoners captured by the United States in Afghanistan. See also Hamdi v. Rumsfeld, slip opinion at 67.
It is noteworthy that in this part of his “analysis”, Yoo relies exclusively on Justice Department memos, not being able to cite any case law. He presents this as a trump card: “We further note that the Treaties and Law Memorandum is the Justice Department’s binding interpretation of the War Crimes Act, and it will preclude any prosecution under it for conduct toward members of the Taliban and al Qaeda.” But all this says is, “This administration won’t prosecute.” That’s not the question; the question is, Is it legal?
Torture
Yoo notes that the torture statute applies only outside the United States, including outside the special maritime and territorial jurisdiction. At 35. He then proceeds to “analyze” the requirements for torture, as specified in 18 U.S.C. 2340(1). This section is truly a “how to” manual for torturers.
He starts with a detailed discussion of “intent”, blundering as he goes:
For a defendant to act with specific intent, he must expressly intend to achieve the forbidden act. See United States v. Carter, 530 U.S. 255, 269 (2000); Black’s Law Dictionary at 814 (7th ed. 1999) (defining specific intent as “[t]he intent to accomplish the precise criminal act that one is later charged with”). For example, in Ratzlaf v. United States, 510 U.S. 135, 141 (1994), the statute at issue was construed to require that the defendant act with the “specific intent to commit the crime.” (Internal quotation marks and citation omitted). As a result, the defendant had to act with the express “purpose to disobey the law” for the mens rea element to be satisfied. Id. (internal quotation marks and citation omitted).
Yoo gives up on this problem, and tries rather to construct “severe” as not meaning “severe”.
Congress’s use of the phrase “severe pain” elsewhere in the U. S. Code can shed more light on its meaning. . . . Significantly, the phrase “severe pain” appears in statutes defining an emergency medical condition for the purpose of providing health benefits. . . . These statutes define an emergency condition as one
manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in—placing the health of the individual. . .(i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture “severe pain” must rise to a similarly high level—the 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.
We shall, for the most part, skip the discussion of severe mental pain or suffering, except to note some of Yoo’s more egregious lies.
For drugs or procedures to rise to the level of “disrupt[ing] profoundly the senses or personality,” they must produce an extreme effect. . . . The word “disrupt” is defined as “to break asunder; to part forcibly; rend,” imbuing the verb with a connotation of violence. Webster’s New International Dictionary 753 (2d ed. 1935); see Webster’s Third New International Dictionary 656 (1986) (defining disrupt as “to break apart: Rupture” or “destroy the unity or wholeness of”); IV The Oxford English Dictionary 832 (1989) (defining disrupt as “[t]o break or burst asunder; to break in pieces; to separate forcibly”).
As previously noted, there are no reported cases of prosecutions under section 2340A. . . . Civil suits filed under the Torture Victims Protection Act (“TVPA”), 28 U.S.C. § 1350 note (2000), which supplies a tort remedy for victims of torture, provide insight into what acts U.S. courts would conclude constitute torture under the criminal statute.
. . . . Certain acts. . .consistently reappear in these cases or are of such a barbaric nature, that it is likely a court would find that allegations of such treatment would constitute torture: (1) severe beatings using instruments such as iron barks, truncheons, and clubs; (2) threats of imminent death, such as mock executions; (3) threats of removing extremities; (4) burning, especially burning with cigarettes; (5) electric shocks to genitalia or threats to do so; (6) rape or sexual assault, or injury to an individual’s sexual organs, or threatening to do any of these sorts of acts; and (7) forcing the prisoner to watch the torture of others. While we cannot say with certainty that acts falling short of these seven would not constitute torture under Section 2340, we believe that interrogation techniques would have to be similar to these acts in their extreme nature and in the type of harm caused to violate the law.
The Common Law
Torture is a violation of the common law. In fact, it held a position of utter dishonor in our society, exemplified by our post-World-War-II and pre-9/11 history of revulsion against it and the Communist regimes that practiced it, until the evil cowards of the Bush administration held it out to the masses as a source of security. Like our own, English case law is nearly bereft of references to torture.(22) Its legality was never an issue at the common law. Blackstone tells us,
THE rack, or question, to extort a confession from criminals, is. . .a species of trial in itself. And the trial by rack is utterly unknown to the law of England; though once when the dukes of Exeter and Suffolk, and other ministers of Henry VI, had laid a design to introduce the civil law into this kingdom as the rule of government, for a beginning thereof they erected a rack for torture; which was called in derision the duke of Exeter’s daughter, and still remains in the tower of London: where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth. But when, upon the assassination of Villiers duke of Buckingham by Felton, it was proposed in the privy council to put the assassin to the rack, in order to discover his accomplices; the judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England.
Where[as] Traytors, Pirates, Thieves. . .[etc] upon the sea, many Times escaped unpunished, because the Trial of their offenses hath heretofore been ordered, judged and determined. . .after the Course of the Civil Laws, the nature whereof is, that before any Judgment of Death can be given against the Offenders, either they must plainly confess their Offences (which they will never do without Torture or Pains) or else their Offences be so plainly and directly proved by Witness indifferent, such as saw their Offences committed, which cannot be gotten but by Chance at few Times, because such Offenders commit their Offences upon the Sea, and at many Times murther and kill such Persons. . .which should witness against them in that Behalf. . .: For the Reformation whereof, be it enacted. . .That all Treasons, Felonies. . .[etc] hereafter to be committed in or upon the Sea. . .shall be inquired, tried, heard, determined and judged. . .after the Common Course of the Laws of this Realm, used for Treasons, Felonies. . . [etc] done and committed upon the Land within this Realm.
In the Parliament convened by Charles I in 1625, three fourths of the members of Commons were Puritans, and “the total wealth of the Commons exceeded threefold the wealth of the lords. . . .” Durants(23) at 201. Here was a classic struggle for power between a rising class and an entrenched one. As it happened, the rising class’s strongly held religious beliefs were deeply at odds with the very nature of the Roman Church, which was associated with the Inquisition and the “civil law” of the Continent, which in turn were associated with torture, while the entrenched class, successors to the Norman invaders, was not shy about introducing Continental procedures when they could be used to advantage.
Commons demanded the full enforcement of anti-Catholic laws, and refused to vote sufficient funds for Charles’ war with Spain. Durants at 201. The two forces struggled for advantage until 1629, when Parliament, threatened by Charles’ troops, adjourned, at 201–204.
Eleven years—the longest such interval in English history—were to pass without the assembling of Parliament. Charles was now free to be an absolute king. . . . [his predecessors] had never stretched the royal prerogative so near the breaking point as Charles was doing by levying unsanctioned taxes, forcing loans, billeting soldiers on citizens, making arbitrary arrests, denying prisoners the rights of habeas corpus and trial by jury, extending the tyranny and severity of the Star Chamber in political, and of the Court of High Commission in ecclesiastical, trials. But Charles’s basic mistake was his failure to recognize that the wealth now represented by the House of Commons was much greater than that wielded by or loyal to the King, and that the power of Parliament must be increased accordingly.
We have seen that the inquisitory methods of the Star Chamber, had had a good deal of influence upon the criminal procedure adopted in the common law courts in the sixteenth century. But it was exactly these methods, as applied to the suppression of the opponents of prerogative government, which the leaders of the Long Parliament were determined to suppress. Thus it was natural that the practice of questioning the accused, and its concomitant, the use of torture, should disappear. It was inevitable, therefore, that the humaner methods of the common law should come to the front, both because they were the only alternative, and because the common lawyers and the Parliamentary party were old allies. Even before the meeting of the Long Parliament, it was clear that the nation was objecting to some of the harsher practice of the sixteenth-century procedure. . . . Sir Thomas Smith had testified both to the national repugnance to torture, and to the feeling aroused by the punishment of jurors for returning verdicts displeasing to the court; and Sir Walter Raleigh, and, at a later date, Hawles, solicitor-general in 1695, in his criticism of the trials of the latter part of Charles II.’s reign, complained that the practices of the crown savoured of the methods of the inquisition. All these feelings and tendencies came to the front in 1640. And just as the informality and the fluidity of the rules of criminal procedure, had enabled some of the harsher methods of the continental procedure of the sixteenth to be introduced gradually and without legislative change; so this same cause enabled a humaner practice to be introduced in a similar manner . . . .
So what about the peine forte et dure, to which Winthrop alluded? Blackstone describes it thus:
THE English judgment of penance for standing mute is as follows: that the prisoner shall be remanded to the prison from whence he come; and put into a low, dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body as great a weight of iron as he can bear, and more; that he shall have no sustenance, save only, on the first day, three morsels of the worst bread; and, on the second day, three draughts of standing water, that shall be nearest to the prison door; and in this situation this shall be alternately his daily diet, till he dies, as the judgment now runs, though formerly it was, till he answered.
THE uncertainty of it’s original [sic], the doubts that may be conceived of it’s legality, and the repugnance of it’s theory (for it rarely is carried into practice) to the humanity of the laws of England, all seem to require a legislative abolition of this cruel process, and a restitution of the ancient common law; whereby the standing mute in felony, as well as in treason and in trespass, amounted to a confession of the charge.
Magna Carta scholar William McKetchnie notes that the elements of torture described by Blackstone were not actually provided for by law. He explains the driving force behind their introduction.(25) The 32d “chapter”, or section, of that document provides that “We will not retain beyond one year and one day, the lands of those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs.” At 337. The Norman kings
had established certain rights, not too well defined, in the property of criminals formally indicted and sentenced for felony. John, here as elsewhere, took advantage of the vagueness of the law to stretch prerogative to its limit. Magna Carta, therefore, attempted to define the exact boundaries of his rights.
Prior to 1215 the usual test was ordeal of water in the ordinary case, or of the red-hot iron in the case of men of high rank and of women. If the suspected person failed, sentence was a mere formality; he had “convicted” himself of the felony. As a consequence of the condemnation of ordeal by the Lateran Council of 1215,(26) the verdict of a petty jury became the normal “test” that branded an offender as convictus. This was long looked on as an innovation, and accordingly the law refused to compel the accused, against his will, to trust his fate to this new form of trial. He might refuse to “put himself upon his country,” and by “standing mute” make his “conviction” impossible, saving himself from punishment and depriving the King of his chattels and “year and day.” For centuries those responsible shrank from the obvious course of treating silence as equivalent to a plea of guilty; but while liberty to refuse a jury’s verdict was theoretically recognized, barbarous measures were in reality adopted to compel consent. The Statute of Westminster in 1275 directed that all who refused should be imprisoned en le prison forte et dure. This statutory authority for strict confinement was liberally interpreted by the agents of the Crown, who treated it as a legal warrant for revolting cruelties. Food and drink were virtually denied, a little mouldy bread and a mouthful of impure water only being allowed upon alternate days; and at a later date the prisoner was slowly crushed to death under great weights “as heavy, yea heavier than he can bear.” Brave men, guilty, or mayhap innocent, but suspicious of a corrupt jury, preferred thus to die in torments, that they might save to their wives and children the property which would upon conviction have fallen to the Crown. The fiction was carefully maintained that the victim of such barbarous treatment was not subjected to “torture,” always illegal at common law, but merely to peine forte et dure, a perfectly legal method of persuasion under the Statute of 1275. This procedure was not abolished until 1772; then only was an accused man for the first time deprived of his right to “have his law”—his claim to ordeal as the old method of proving his innocence. Until that date, then, a jury’s verdict was treated as though it were still a new-fangled and unwarranted form of “test” usurping the place of the ordeal, although the latter had been virtually abolished early in the thirteenth century.
Thus it cannot reasonably be argued that torture of prisoners was seen by our Founders as a “recognized prerogative” of any sovereign. Rather, the English common law’s absolute prohibition of torture had, by their time, long since triumphed over the “civil law” practice, as part of the English people’s hard-won triumph over the monarchist model brought across the Channel by William the Conqueror, and such a prerogative was not incorporated into the President’s war powers.
III. International Law
Can the President suspend a treaty unilaterally?
At the outset, it is important to emphasize that the President can suspend or terminate any treaty or provision of a treaty. See generally Memorandum for John Bellinger, III, Senior Associate Counsel to the President and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ARM Treaty (Nov. 15, 2001); Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Re: Authority of the President to Denounce the ABM Treaty (Dec. 14, 2001). Any presidential decision to order interrogation methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions.
Yoo at 47, emphasis added.
Given that treaties, along are part of “the supreme Law of the Land” (“supreme” referring to the supremacy of Federal law over state law), Art. VI, cl. 2, this is astonishing. The President cannot suspend or terminate the law of the land. If a treaty provides for Presidential action in the arena of foreign affairs, it is true, neither the Legislative or Judicial Branches can make him do it. And if the political branches are required to act, the Judicial Branch can’t make them do it. But
A treaty, then, is a law of the land as an act of congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.
Consistent with this principle is Yoo’s failure to cite any authorities other than Attorney General’s opinions, which are only authoritative insofar as they reflect the President’s policies. But presently, at 50, he does cite case law: “The President conducts the day-to-day interpretation of a treaty and may terminate a treaty unilaterally. See Goldwater v. Carter, 617 F.2d 697, 707–08 (D.C. Cir.) (en banc), vacated and remanded with instructions to dismiss on other grounds, 444 U.S. 996 (1979).” Unfortunately for Yoo, this is such a fucking lie that it merits his being drawn and quartered—after a fair trial, but also after a suspension of the Eighth Amendment. The Circuit Court did not make any such general statement. Rather, it said, “The constitutional issue we face, therefore, is solely and simply the one of whether the President in these precise circumstances is, on behalf of the United States, empowered to terminate the Treaty in accordance with its terms.” At 699b. But for the sake of shit-heads like Yoo, the Court didn’t leave it at that. “All we decide today is that two-thirds Senate consent or majority consent in both houses is not necessary to terminate this treaty in the circumstances before us now.” At 707b. Still not satisfied that Yoo will pay heed, the Court reiterated, “The matter before us is solely one of whether the Constitution nullifies the procedure followed by the President in this instance.” At 709a. Is the Court now confident that Yoo gets the point? Not at all. “We regard the only issue here to be whether the constitutional allocation of government power between two branches requires prior legislative consent to the termination of this treaty under the circumstances presented by this record.” Id., all emphases added.
The treaty at issue was the Mutual Defense Treaty with Taiwan. “Prominent” among the circumstances involved were the mutually exclusive claims of the Peking and Taipei governments to be sovereign over both mainland China and Taiwan. At 707b. As a condition for establishing full diplomatic relations, Peking stipulated that formal relations with Taipei must be broken. At 700a. Thus the President’s undisputed authority to recognize the Peking government required abrogation of the Treaty. The Circuit Court drew no conclusions about terminating any other treaty whatsoever.
It is also a fucking lie that the Supreme Court “remanded with instructions to dismiss on other grounds.” The Court remanded with instructions to dismiss period. See 444 U.S. 996, 996. It vacated the Circuit Court’s judgment, but no one ground commanded a majority of votes. Four of the Justices concurring in dismissal (Rehnquist, Berger, Stewart, and Stevens) did so on the grounds that termination of the instant treaty was a non-justiciable question. Justice Powell argued that the issue was not ripe for judicial review; Justice Marshall did not give a reason for concurring in the dismissal. Of the three not concurring in the vacation, White and Blackmun wanted to hear the case before offering any opinion, and Brennan would have affirmed the Circuit Court. Thus only one Justice was ready at that point to affirm the President’s authority to unilaterally abrogate even this one specific treaty.
Miscellaneous note
Yoo correctly notes that the Senate has eviscerated the CAT, that is, specified it to be non-self-executing, and closes the paragraph with “Similarly, customary international law lacks domestic legal effect, and in any event can be overridden by the President at his discretion.” Yoo at 47. However, to the extent that customary international law has been incorporated into a treaty or other domestic law (see above), the President cannot suspend it.
Efficacy of Presidential interpretations of treaty text
Shit-ass seizes on the CAT’s separate category of “cruel and inhuman treatment” to justify his proposal to redefine torture not as inflicting severe pain, as the statute defines it, but rather as committing acts that are so egregious that none of Bush’s interrogation techniques would qualify (see above): “CAT reserves for torture alone the criminal penalties and the stigma attached to those penalties. In so doing, CAT makes clear that torture is at the farthest end of impermissible actions, and that it is distinct and separate from the lower level of ‘cruel, inhuman, or degrading treatment or punishment.’” At 49.
Yoo now prepares to raise Reagan and Bush I administration comments on the CAT to the level of a Supreme Court opinion (“. . .the United States is bound only by the text of CAT as modified by the Bush administration’s understanding.” Yoo at 56, footnote omitted). This, of course, requires more lies:
Courts accord the Executive Branch’s interpretation the greatest weight in ascertaining a treaty’s intent and meaning. See, e.g., United States v. Stuart, 489 U.S. 353, 369 (1989) (“‘the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight’”) (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176; 184–85 (1982));. . . .
Next Yoo cites Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (“While courts interpret treaties for themselves, the meaning given them by the department of government particularly charged with their negotiation and enforcement is given great weight.”). At 50. But in Kolovrat, recourse was had to the Executive Branch only after the treaty text was found to be ambiguous:
The parts of the 1881 Treaty most relevant to our problem are set out below. The very restrictive meaning given the Treaty by the Oregon Supreme Court is based chiefly on its interpretation of this language:
In all that concerns the right of acquiring, possessing or disposing of every kind of property. . .citizens of the United States in Serbia and Serbian subjects in the United States, shall enjoy the rights which the respective laws grant. . .in each of these states to the subjects of the most favored nation.This, the State Supreme Court held, means that the Treaty confers a right upon a United States citizen to acquire or inherit property in Serbia only if he is “in Serbia” and upon a Yugoslavian citizen to acquire property in the United States only if he is “in the United States.” The state court’s conclusion, therefore, was that the Yugoslavian complainants, not being residents of the United States, had no right under the Treaty to inherit from their relatives who died leaving property in Oregon. This is one plausible meaning of the quoted language, but it could just as plausibly mean that “in Serbia” all citizens of the United States shall enjoy inheritance rights and “in the United States” all Serbian subjects shall enjoy inheritance rights, and this interpretation would not restrict almost to the vanishing point the American and Yugoslavian nationals who would be benefited by the clause. . . .
And finally, Yoo cites Charlton v. Kelly, 229 U.S. 447, 468 (1913) (“A construction of a treaty by the political departments of the government, while not conclusive upon a court. . ., is nevertheless of much weight.”). There, Executive Branch construction and practice merely conformed to the plain language of the text, against the appellant’s attempt to read in an exception:
The conclusion we reach is, that there is no principle of international law by which citizens are excepted out of an agreement to surrender ‘persons,’ where no such exception is made in the treaty itself. Upon the contrary, the word ‘persons’ includes all persons when not qualified as it is in some of the treaties between this and other nations. That this country has made such an exception in some of its conventions and not in others demonstrates that the contracting parties were fully aware of the consequences unless there was a clause qualifying the word ‘persons.’ This interpretation has been consistently upheld by the United States, and enforced under the several treaties which do not exempt citizens. . . . But that the United States has always construed its obligation as embracing its citizens is illustrated by the action of the executive branch of the government in this very instance. A construction of a treaty by the political department of the government, while not conclusive upon a court called upon to construe such a treaty in a matter involving personal rights, is nevertheless of much weight.
Thus by Yoo’s own authorities, the deference accorded to Executive Branch construction applies only when there is an ambiguity in the text. But Reagan and Bush I sought to raise the bar. The CAT prohibits “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as. . .” Contrast this with President Reagan’s statement:
The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.S. Treaty-Doc. No. 100-20, at 4–5.
At the Senate hearing on CAT, Mark Richard, Deputy Assistant Attorney General, Criminal Division, Department of Justice, offered extensive testimony as to the meaning of torture. Echoing the analysis submitted by the Reagan administration, he testified that “[t]orture is understood to be that barbaric cruelty which lies at the top of the pyramid of human rights misconduct.” 1990 Hearing at 16 (prepared statement of Mark Richard). He further explained, “As applied to physical torture, there appears to be some degree of consensus that the concept involves conduct, the mere mention of which sends chills down one’s spine[.]” Id. Richard gave the following examples of conduct satisfying this standard: “the needle under the fingernail, the application of electrical shock to the genital area, the piercing of eyeballs, etc.” Id. In short, repeating virtually verbatim the terms used in the Reagan understanding, Richard explained that under the Bush administration’s submissions with the treaty “the essence of torture” is treatment that inflicts “excruciating and agonizing physical pain.” Id.
These interpretations set a higher threshold than the treaty text does. Clearly, behaviors other than those whose descriptions send chills down a normal person’s spine, can cause “severe” pain. Thus these various Executive Branch interpretations are of no force—the Executive’s interpretation only has effect when the treaty language is ambiguous in the sense of Yoo’s three cited Supreme Court opinions. Let’s quickly review those three examples:
· U.S. v. Stuart: whether U.S. officials may inquire about the purpose to which information will be put by Canadian authorities, where the treaty simply requires them to hand it over;
· Kolovrat: whether the text means “rights in the United States of all Serbian citizens”, or “rights of Serbian citizens when they happen to be in the United States”;
· Charlton v. Kelly: whether the word “persons” is subjected to any unstated exemptions.
“Severe” is ambiguous in the sense that it does not specify a precise point on the pain continuum, to one side of which behavior is in violation of the treaty, and to the other side of which it is not. But no word can do that. The examples from the case law, on the other hand, are ambiguous in the sense that two different concrete situations could each fit the words: to inquire about purpose or not, just the subset in the United States or the whole set, all persons or not.
Torture as self-defense
Incredibly the Criminal argues that torturing prisoners in an effort to elicit intelligence is an act of national self-defense. First, he goes to great pains to establish that nations have a right to self-defense, at 57–60. That no one would argue this basic premise proves that Yoo is beating the subject to death to give his memo a patina of scholarship—and to be sure, it doesn’t contain any other elements of scholarship.
None of his citations have anything to do with torture. For example, he profanes the memory of President Kennedy by dragging in the Cuban Missile Crisis: “Memorandum for the Attorney General, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel, Re: Legality under International Law of Remedial Action Against Use of Cuba as a Missile Base by the Soviet Union at 2 (Aug. 30, 1962).” At 58. One does not have to be an historian to know that the “remedial” actions did not include torture. A fruitless appeal is made to Martin v. Mott, 25 U.S. 19, 29 (1827): “the [domestic] power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion”. Id., text in brackets added by Yoo. The full relevant text is
The constitution declares that Congress shall have power “to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions:” and also “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.” In pursuance of this authority, the act of 1795 has provided, “that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper.” And like provisions are made for the other cases stated in the constitution. It has not been denied here, that the act of 1795 is within the constitutional authority of Congress, or that Congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actually taken place. In our opinion there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is to provide the requisite force for action before the invader himself has reached the soil.
Nevertheless, Yoo claims,
. . .if interrogation methods were inconsistent with the United States’ obligations under CAT, but were justified by necessity or self-defense, we would view these actions still as consistent ultimately with international law. Although these actions might violate CAT, they would still be in service of the more fundamental principle of self-defense that cannot be extinguished by CAT or any other treaty.
Shamelessly he plows forward:
Further, if the President ordered that conduct, such an order would amount to a suspension or termination of the Convention. In so doing, the President’s order and the resulting conduct would not be a violation of international law because the United States would no longer be bound by the treaty.
Cruel, Inhuman, or Degrading Treatment
After ritually invoking self-defense again, at 59, Yoo notes that the United States has ratified CAT with the reservation that cruel and inhuman treatment is defined in the same was “cruel and unusual” in our Eighth Amendment. He next comments on certain international decisions. We shall give him a pass on these comments, since the decisions are not readily at hand to provide the context from which he has undoubtedly wrenched his quotes. See pp. 59–60.
Yoo then invokes the “malicious and sadistic” standard, applicable to the use of force by prison officials, citing Porter v. Nussle, 534 U.S. 516, 528 (2002), Yoo at 60–61. He bolsters this “defense” by noting that
the Supreme Court has emphasized that deference must be accorded to the decisions of prison officials “taken in response to an actual confrontation with riotous inmates” as well as “to prophylactic or preventative measures intended to reduce the incidence of these or any other breaches of prison discipline.”
. . .the excessive force analysis turns on whether the official acted in good faith or maliciously and sadistically for the very purpose of causing harm. For good faith to be found, the use of force should, among other things, be necessary. Here, depending upon the precise factual circumstances, such techniques may be necessary to ensure the protection of the government’s interest here—national security. As the Supreme Court recognized in Haig v. Agee, 453(29) U.S. 280 (1981), “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Id. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)). In the typical excessive force case; the protection of other inmates and officers or the maintenance of order are valid government interests that may necessitate the use of force. If prison administration or the protection of one person can be deemed to be valid governmental interests necessitating the use of force, then the interest of the United States here—obtaining intelligence vital to the protection of thousands of American citizens—can be no less valid.
We have already demolished the “national security” defense as contrary to the common law, common sense, and the practices of civilized people, not to mention the utterly void that when support for it is sought in the authorities. But Yoo continues to feed us further grounds for his prosecution. Haig was about security clearances, and Aptheker was about denying passports to Communist Party members, because of the alleged threat to national security posed by the Party. Neither had anything to do with torture. Even dick-head himself is forced to admit, “To be sure, no court has encountered the precise circumstances here.” Id. No fucking shit! Before Bush II, it was never the policy of our Government to torture. Stopping actual physical attacks by prison inmates, or using measures such as restricting all inmates to their cells to prevent likely attacks, is an entirely different from the speculative use of torture to extract information.
Yoo goes on and on about inapposite conditions-of-confinement case law, completely misconstruing the role of the Eighth Amendment in our CAT reservation. He is particularly concerned about the state of mind of the person in whose custody the victim is:
To show deliberate indifference under the subjective element of the conditions of confinement test, a prisoner must show that “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists and he must also draw the inference.” . . . This standard requires greater culpability than mere negligence. . . .
Due Process
Yoo lengthens his trail of obfuscations For example, “The Supreme Court has limited the use of the nebulous standards of substantive due process and sought to steer constitutional claims to more specific amendments.” Yoo at 66. So? It does not at all follow that due process offers no greater protection against cruel and inhuman treatment than does the 8th Amendment, and Yoo offers no authority on that specific question. And he does not neglect to continue beating the dead horse of apprehension and confinement situations: “To shock the conscience, the conduct at issue must involve more than mere negligence by the executive official.” Yoo at 66, citing County of Sacramento, 523 U.S. 835, 849 (1998), involving a death occurring during “a high-speed automobile chase aimed at apprehending a suspected offender”, 523 U.S. at 836. Or, “See Johnson v. Glick, 481 F .2d at 1033 (‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights’).” Yoo at 67, oblivious to the fact that “cruel and inhuman” treatment is not about pushes and shoves.
Selective quoting is not to be discontinued, either. Yoo cites Rochin v. California, 342 U.S. 165, 172 (1952), for the proposition that “the conduct at issue must ‘do more than offend some fastidious squeamishness or private sentimentalism’ to violate due process.” Yoo at 67. But he ignores Rochin when he writes, “Although enemy combatants may not pose a threat to others in the classic sense seen in substantive due process cases, the detainees here may be able to prevent great physical injury to countless others through their knowledge of future attacks,” at 68. Rochin contradicts him on this:
Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.
International Cases
Ireland v. the United Kingdom, from Yoo’s description, appears to set a high bar for an act to be torture.(31) But there are problems with Yoo’s description. He says that five interrogation techniques were at issue. The first, “wall standing”, he describes in his own words: “The prisoner stands spread eagle against the wall, with fingers high above his head, and feet back so that he is standing on his toes such that his all of his [sic] weight falls on his fingers.” At 69. That can’t be true. If the subject is “standing on his toes”, all of the weight cannot “fall on his fingers”. We aren’t told for how long the subjects had to stand. From this description, we cannot conclude that “wall standing” was as bad as the “stress positions” used by American interrogators. The other four techniques, hooding, subjection to noise, sleep deprivation, and deprivation of food and drink, could easily fall outside the definition of torture. Yoo describes the last as simply “a reduced diet”. Notably absent is waterboarding. And “severe” beating, for the most part, is not part of American interrogators’ arsenal. Yoo has proven himself untrustworthy, and we’re not going to trust him on this one.
The Supreme Court of Israel, in Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 (1999), reviewed the use of five techniques by the General Security Service (“GSS”). Yoo at 70–71. Attempting to make the best of an inapt precedent, Yoo concludes,
While the Israeli Supreme Court concluded that these acts amounted to cruel, and inhuman treatment, the court did not expressly find that they amounted to torture. To be sure, such a conclusion was unnecessary because even if the acts amounted only to cruel and inhuman treatment the GSS lacked authority to use the five methods. Nonetheless, the decision is still best read as indicating that the acts at issue did not constitute torture. The court’s descriptions of and conclusions about each method indicate that the court viewed them as merely cruel, inhuman or degrading but not of the sufficient severity to reach the threshold of torture. While its descriptions discuss necessity, dignity, degradation, and pain, the court carefully avoided describing any of these acts as having the severity of pain or suffering indicative of torture. See id. at pars. 24–29. Indeed, in assessing the Shabach [one of the techniques at issue] as a whole, the court even relied upon the European Court of Human Right’s’ Ireland decision for support and it did not evince disagreement with that decision’s conclusion that the acts considered therein did not constitute torture. See id. par. 30.
IV. Due Process
A complete explication of this topic will be reserved for a later time. Meanwhile, it may be noted that Yoo starts his discussion by citing authorities to the effect that killing in combat is lawful (pp. 6–8). He continues this immaterial discussion thus:
The Supreme Court has repeatedly refused to apply the Due Process Clause or even the Just Compensation Clause to executive and congressional actions taken in the direct prosecution of a war effort against enemies of the Nation. It has long been settled that nothing in the Fifth Amendment governs wartime actions to detain or deport alien enemies and to confiscate enemy property. As the Court has broadly stated in United States v. Salerno; 481 U.S. 739, 748 (1987), “in times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous” without violating the Due Process Clause. See also Ludecke v. Watkins, 335 U.S. 160, 171 (1948).
Immaterial as it is, this passage is an important pronouncement on the topic of detain individuals such as Jose Padilla, and must not go unanswered. The full quote from Salerno is,
For example, in times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous. See Ludecke v. Watkins, 335 U.S. 160 (1948) (approving unreviewable executive power to detain enemy aliens in time of war); Moyer v. Peabody, 212 U.S. 78, 84–85 (1909) (rejecting due process claim of individual jailed without probable cause by Governor in time of insurrection).
In Moyer,
the governor had declared a county to be in a state of insurrection, had called out troops to put down the trouble, and had ordered that the plaintiff should be arrested as a leader of the outbreak, and should be detained until he could be discharged with safety, and that then he should be delivered to the civil authorities, to be dealt with according to law.
Yoo continues at some length to establish that the Fifth Amendment does not apply outside the territorial jurisdiction of the United States, and therefore does not apply to torture committed outside that jurisdiction, at 8–10.
V. Defenses
We will not waste a lot of time on this topic. Yoo has already damned himself seventy-fold. His argument is basically the thoroughly discredited “ticking bomb” scenario: “In particular, the necessity defense can justify the intentional killing of one person to save two others because ‘it is better that two lives be saved and one lost than that two be lost and one saved.’” At 75, quoting 1 Wayne R. Lafave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 629 (1986). We are all familiar with how the Bush administration translated this into a justification of torture:
It appears to us that the necessity defense could be successfully maintained in response to an allegation of a violation of a criminal statute. Al Qaeda’s September 11, 2001 attack led to the deaths of thousands and losses in the billions of dollars. According to public and governmental reports, al Qaeda has other sleeper cells within the United States that may be planning similar attacks. Indeed, we understand that al Qaeda seeks to develop and deploy chemical, biological and nuclear weapons of mass destruction. Under these circumstances, a particular detainee may possess information that could enable the United States to prevent imminent attacks that could equal or surpass the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.
Yoo falsely and maliciously implies that the Supreme Court has already upheld this interpretation of the necessity defense: “Although there is no federal statute that generally establishes necessity or other justifications as defenses to federal criminal laws, the Supreme Court has recognized the defense. See United States v. Bailey, 444 U.S. 394, 410 (1980). . . .” At 74. But, waiving the objection that the Bailey opinion does not describe the defendants as harming anyone while escaping or while they were on the lam, the defense there was that the defendants broke out of prison in response to on-going beatings and concern about problems such as frequent fires, at 398—not speculation that an individual might have information about a plot that might exist. If speculation is allowed, anyone, anywhere, any time can be tortured, and the act defended as a necessity.
Yoo himself can’t even come up with an example of speculative self-defense. Instead, he gives us tripe such as:
To use a well-known hypothetical, if A were to kidnap and confine B, and then tell B he would kill B one week later, B would be justified in using force in self-defense, even if the opportunity arose before the week had passed. Id. [LaFave & Scott] at 656; see also Robinson at § 131(c)(1) at 78. In this hypothetical, while the attack itself is not imminent, B’s use of force becomes immediately necessary whenever he has an opportunity to save himself from A.
We shall spare ourselves further nausea, and stop here.
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Footnotes:
1 There is no case law specifically concerning “captures” through U.S.C.A. pocket part, cases through 2009.
2 Edited by Benjamin Fletcher Wright (New York: MetroBooks, 2002).
3 Dillin is quoted again at 11.
4 Clearly Congress can’t direct every troop movement on the battlefield, not because it doesn’t have the power, but because it simply couldn’t move fast enough. But waiving the objection that it can always control the President’s conduct of war through the power of the purse, Congress might still disagree about its power over “strategic and tactical decisions”. Congressional interference might be stupid, or it might not. But in 1970, the Senate debated legislation to forbid the introduction of American troops into Cambodia. See, e.g., Karnow, Stanley, Vietnam—A History (New York: The Viking Press, 1983), at 608.
5 See also p. 16:
Under traditional practice as expressed in the customary laws of war, the treatment of unlawful belligerents is left to the sovereign’s discretion. . . . Under our Constitution, the sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief. In light of the long history of discretion given to each nation to determine its treatment of unlawful combatants, to construe these statutes to regulate the conduct of the United States toward such combatants would interfere with a well-established prerogative of the sovereign.6 Annex, article 2:
The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.According to American case law (contact bobmossnj@verizon.net), they are automatically belligerents when war is declared or the other side recognizes them as de facto belligerents.
7 New York: Simon & Schuster, 1979.
8 Downloaded from http://www.icrc.org/ihl.nsf/COM
9 We must be prepared for Yoo’s continued indifferent use of “enemy combatant” and “unlawful combatant”, when he means “non-combatant criminal”, throughout his arguments.
Not by any stretch of the imagination could a rational person argue that everyone designated an “enemy combatant” by Yoo’s boss, including those captured while admittedly engaged in lawful combat on the battlefield, and those arrested in the far corners of the world, such as Bosnia and the Gambia, on the basis of tips of unknown veracity, qualifies as a non-combatant criminal. Yet that was the Bush administration’s argument, that they were all the “worst of the worst”, and therefore, under Yoo’s phony “legal analysis”, they could be tortured.
That this whole structure was concocted without any reference to the law, solely for the purpose of sanctioning torture, could not be more clear. The Bush administration repeatedly made it clear that the object of torture was to gain intelligence that would save American lives. But sanctioning the torture of anyone and everyone would not sell. So only the torture of “enemy combatants”, that is, non-combatant criminals, would be sanctioned. But that created a dilemma: either one had to assume that only non-combatant criminals had critical information, or one had to give up access to a large pool of potential informants. To get around this, Bush determined that everybody he wanted to interrogate was a non-combatant criminal, and Yoo dug up the foregoing authorities to justify their torture.
10 The Law of War was published by Cambridge University Press, 1987.
11 Vattel, Emmerich de, The Law of Nations, or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (London: G. G. and J. Robinson, 1797). First published in French, 1758. Translator not specified.
12 (London, 1814). Translated by A. C. Campbell; first published 1625.
13 Robert Louis Stevenson, Treasure Island, chapter 30.
14 “Id.” refers to a Justice Department memorandum.
15 The Paquet Habana follows the earlier cited cases in that it commanded passive obedience to customary law, rather than permitted positive action on the grounds that customary international law allowed it.
16 Not all members of the U.S. military are U.S. nationals. A “national of the United States” is “as defined in section 101 of the Immigration and Nationality Act”, id., that is, 8 U.S.C. 1101(a) (22), which reads, “The term ‘national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” A non-citizen owing permanent allegiance is a non-citizen U.S. national, that is, “A person born in an outlying possession of the United States on or after the date of formal acquisition of such possession”, and persons in related circumstances, 8 U.S.C. 1408. Non-citizen U.S. nationals owe permanent allegiance, 8 U.S.C. 1452(b)(2). One can be a “member of the Armed Forces of the United States” and not be a “national of the United States”, since 10 U.S.C. 504(b)(B) allows enlistment into the military by “An alien who is lawfully admitted for permanent residence”.
17 The “rule of exclusion” is merely a special case of the more general rule prohibiting absurd results:
The common sense of man. . .accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire—“for he is not to be hanged because he would not stay to be burnt.”Kirby at 487.
18 The restriction of “crimes and offenses” to those “not capital” is worth noting. It has been there all along, but when Winthrop was writing, Article 58 provided that
In time of war, insurrection, or rebellion, larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with an intent to kill, wounding, by shooting or stabbing, with an intent to commit murder, rape, or assault and battery with an intent to commit rape, shall be punishable by the sentence of a general court-martial, when committed by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment provided, for the like offense, by the laws of the State, Territory, or district in which such offense may have been committed.Winthrop at 990. Winthrop notes that this Article restricted the jurisdiction over capital crimes by courts-martial, unless otherwise specified in the Articles of War, to “time of war” only. Thus, while courts-martial could try non-capital offences not specifically mentioned in the Articles in peacetime, only the civil courts had jurisdiction over capital crimes committed by military personnel. At 721–722. This would explain the restriction “not capital” in 10 U.S.C. §934. However, there is no equivalent in the present UCMJ to Winthrop’s Article 58, so it appears that the retention of the restriction in the present UCMJ may be an oversight. Torture under the statute is a capital crime if death results from the torture. For our immediate purposes, we will assume that the victim did not die.
19 The Continental Congress had the power of “appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures”, and special courts for hearing disputes between states. Article IX.
20 Statutes passed in 1789 (I Stats) covered (chapter numbers in parentheses):
· administration of oaths (1)
· import duties (2, 3, 5, 15)
· establishing cabinet departments (4, 7, 12)
· settling accounts between the Federal government and the states (6)
· government of the Northwest Territories (8)
· coastal trade, lighthouses, etc. (9, 11, 22)
· negotiations with Native Americans (10)
· federal salaries (13, 17, 18, 19)
· record-keeping (14)
· establishing the Post Office (16)
· establishing and regulating the courts (20, 21)
· appropriations (23)
· U.S. pensioners (24)
· Federal troops (25)
· time for next meeting of Congress (27)
Chapter number 26 was for some reason not used.
Statutes of 1790 (II Stats):
· import duties (1, 8, 19, 30, 35)
· census (2, 25)
· naturalization (3)
· appropriations (4, 22, 31, 34, 39, 46, 47)
· inspection of exports (5)
· territorial matters (6, 14, 40)
· patents (7)
· regulation of the military (10)
· procedure for authenticating state proceedings so that they can be given full faith and credit in other states (11)
· Federal revenue (12)
· court establishment and regulation (13, 17, 20, 42)
· copyright (15)
· Federal salaries (18)
· purchase of West Point (26)
· U.S. pensioners (27)
· seat of U.S. government (28)
· merchant seamen (29)
· coastal trade, lighthouses, etc. (32, 41)
· trade with Native Americans (33)
· Post Office (36)
· settling accounts between the Federal government and the states (38)
· permission to certain states to levy duties
Of particular interest to us is Chapter 9, relating to crimes against the U.S. These fall into the following categories (section numbers in parentheses):
· treason (1, 2, 29, 30)
· crimes committed within the jurisdiction of the U.S., e.g. in a fort or arsenal (3, 4, 5, 6, 7)
· crimes committed on the high seas or “out of the jurisdiction of any state” (8–13, 16, 17)
· counterfeiting (14)
· stealing or altering U.S. records (15)
· perjury in a U.S. court (18–20)
· bribing U.S. judges (21)
· obstructing a U.S. officer (22)
· freeing U.S. prisoners (23, 24)
· immunity for ambassadors and related issues (25–27)
· violation of U.S. safe conduct (28)
· matters relating to capital offenses (31–33)
Chapter numbers not used: 16, 20, 23, 24, 37, 44, 45
21 On the other hand, Assistant Attorney General Jay S. Bybee, in his August 1, 2002 memo, did specifically absolve those carrying out specific interrogation techniques of specific intent:
. . .we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. The objective of these techniques is not to cause severe physical pain. First, the constant presence of personnel with medical training who have the authority to stop the interrogation should it appear it is medically necessary indicates that it is not your intent to cause severe physical pain. The personnel on site have extensive experience with these specific techniques as they are used in SERE school training. Second, you have informed us that you are taking steps to ensure that Zubaydah’s injury is not worsened or his recovery impeded by the use of these techniques.At 16. Bybee is clearly equating injury and other adverse medical consequences with pain, resorting to a standard Yoo obfuscation, and providing solid grounds for his own prosecution.
Third, as you have described them to us, the proposed techniques involving physical contact between the interrogator and Zubaydah actually contain precautions to prevent any serious physical harm to Zubaydah.
22 A search of Viner’s Abridgement, Viner’s Abridgment 1791–1794, Mew’s Digest of English Case Law to 1924, and Halsbury’s Laws of England, under the following headings: “army”, “military”, “soldier”, “war”, “torture”, “interrogation”, “evidence”, “confession”, and “process”, turned up little other than Rex v. Warickshall, cited below.
23 Durant, Will and Ariel, The Age of Reason Begins (New York: Simon and Schuster, 1961).
24 Holdsworth, William, History of English Law (London: Methuen & Co. Ltd., 1972)
25 Magna Carta: A Commentary on the Great Charter of King John, 2d ed. (Glasgow: James Maclehose and Sons, 1914).
26 The Durants, Age of Faith, at 567, specify this as the Fourth Lateran Council, acting on the question in 1216. They continue that Henry III “adopted this prohibition into English law (1219)”.
27 His footnote 16 identifies the 1275 Statute of Westminster as 3 Edward I. c. 12. His footnote 17 notes that “The Act 12 George III. c. 20, made standing mute equivalent to a plea of guilty. A later Act, 7 and 8 George IV. c. 28, made it equivalent to a plea of not guilty.”
28 For more details, see my analysis of Medelin. bobmossnj@verizon.net
29 Yoo has a typo here, his memo reads “435”.
30 See also Yoo at 65,
Nonetheless, we believe it is beyond question that there can be no more compelling government interest than that which is presented here and depending upon the precise factual circumstances of an interrogation, e.g., where there was credible information that the enemy combatant had information that could avert a threat, deprivations that may be caused would not be wanton or unnecessary.31 As would be expected from the lying fucks of the right wing, not one peep has been raised, certainly not anything loud enough to be heard in the mainstream media, protesting Yoo’s citation of foreign court decisions. Obviously, such decisions are only invalid as precedents when the right wing doesn’t like their conclusions.
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