Download Document: NationalSecurityFinalPaper
U. S. Department of Justice
Office of Legal Counsel
Office of the Deputy Assistant Attorney General Washington, D.C. 20530
April 5, 2011
President Barack Hussein Obama
The White House
Dear President Obama,
You have requested the views of our Office concerning a re-assessment of interrogation methods outlined in the August 1, 2002 Yoo-Bybee memo regarding Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A. More specifically you have asked if the methods deemed legal by Yoo should be reinstated by the Central Intelligence Agency in order to interrogate the recently captured Nasir Abdel Karim al-Wuhayshi, also known as Abu Basir. The C.I.A. has requested authorization for the limitless use of several interrogation methods that we consider torture. We concur with the U.S.C. definition of torture. The techniques sanctioned by John Yoo and Jay Bybee as well as the ones requested by the C.I.A. is in violation of this statute. We recognize hypothetical scenarios in which violating Section 2340A could be justified. The C.I.A. does not have sufficient evidence that the United States is under imminent threat of attack or that torturing al-Wuhayshi could prevent an attack. This letter summarizes our views and explains our reasoning.
18 U.S.C. §§ 2340-2340A is extraordinarily clear in defining torture. Torture is “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control (Reading #13, p. 5).” This includes prolonged mental harm, intentional infliction of physical pain, the use of mind-altering substances and applications, and the threat of imminent death. Even threatening a detainee with torture counts as an act of torture.
The law applies to all areas within in the United States as well as “commonwealths, territories, and possessions.” This includes prisons such as the one in Guantanamo Bay. The Bush administration argued that Guantanamo Bay existed outside the jurisdiction of U.S. law in Rasul v. Bush (2004). The Supreme Court determined that the U.S. has sufficient sovereignty over Guantanamo Bay and therefore U.S. laws apply (Reading #12, p. 96). The Office of Legal Counsel concurs with this opinion.
Even if the Supreme Court ruled in favor of President Bush and Guantanamo Bay did not count as a possession of the United States, Section 2340A would still apply. Section 2340A concerns American citizens all over the world. If an American citizen violates 2340-2340A they are liable for prosecution. This includes soldiers and intelligence officers stationed overseas.
John Yoo states that his memo’s definition of torture is in line with Section 2340A. It clearly is not. Yoo believes that severe pain must be inflicted for an interrogation technique to be considered torture. He explains that severe pain is limited too “serious physical injury, such as organ failure, impairment of bodily function, or even death.” Yoo believes that for a technique to cause mental pain it must be sustained for months, maybe even years (Reading #13, p. 4).”
Yoo’s definition of severe pain is extreme and arbitrary. There are ways to inflict intense agony without causing or equivocating organ damage or impairing a bodily function. Under Yoo’s definition bleeding, and beatings are all perfectly legal interrogation methods.
Yoo’s definition of mental pain is also extreme and arbitrary. It fails to take into account lasting trauma Yoo’s “enhanced interrogation techniques” can cause, even if only done for a few hours. Sleep depravation for three to four days can potentially cause permanent brain damage. This is a technique the CIA is requesting to use now and that Yoo has sanctioned. Section 2340A bars drugs or procedures that can alter “the senses or the personality (Reading #13, p. 12).” Sleep deprivation can cause hallucinations, which do just that.
Yoo believes that waterboarding does not violate Section 2340A. He would argue that it does not cause severe pain. Waterboarding does not impair a bodily function, nor does it result in organ damage. Waterboarding is simulated drowning. In many cases the detainee believes he will drown unless the interrogator intervenes. Section 2340A explicitly says that threatening a detainee with imminent death is torture (Reading #13, p. 6). Section 2340A could not be more clear on this. Waterboarding is torture.
Yoo takes the time to spin Section 2340A to legally justify the actions the CIA, the military and the Bush Administration wanted to take against detainees. He goes on to say that even if the administration violates Section 2340A it would not matter. John Yoo argues that Article II of the Constitution establish the president as the “Commander in Chief (Reading #13, p. 19).” Yoo interprets this to mean that he can define the scope of his own wartime powers. The president can decide when there is a war, what he needs to do to win the war and how he would like to treat detainees and prisoners of war. Yoo believes that laws passed outside the Executive Branch that set parameters on what can be done in the context of war, including Section 2340A violate the president’s constitutional authority.
This argument holds no ground. Precedent has often recognized limitations to presidential powers in regards to war and foreign affairs. United States v. Curtiss-Wright Export Corp (1936) showed that Congress has the power to direct the president to enforce arm embargos of foreign countries (Reading #12, p. 109). In the Ex Parte Milligan (1866) Case Lincoln was not allowed to try a captured Confederate under a military tribunal because he was captured where civilian courts were still operating (Reading #5, p. 1). The Supreme Court ruled that in Rasul v. Bush (2004) detainees at Guantanamo Bay were entitled to habeas corpus and cannot be held indefinitely (Reading #12, p. 96). These are just a sample of cases that emphasize that the president’s wartime powers are not limitless. Yoo is wrong in thinking that it is.
The framers of the constitution did not intend for the executive’s wartime powers to be limitless. There are clear checks and balances in the constitution to ensure that it is not. Yoo writes that as Commander in Chief, the president decides when we are at war and with whom. Yet Article I of the constitution states that congress has the power to declare war. Congress also has the power to fund or not fund the military (Reading #13, p. 18). George W. Bush still sought authorization for the use of force before the invasions of Afghanistan and Iraq. That is essentially a modern day declaration of war.
The Constitution and the Supreme Court has made it clear that the president, even in wartime, is still bound by law. Therefore the Executive Branch must comply with Section 2340A.
The United States is also a participant and signer of the Geneva Conventions. In those conventions we have agreed not to torture enemy prisoners. Yoo argued that captives from the war on terror are not typical prisoners of war because it is a “new kind of war.” The war on terror requires obtaining quick result from interrogating detainees and the president can choose to sidestep the torture provision of the Geneva Convention (Reading #13, p. 2). On this point, Yoo is also wrong. In the Prize Cases during the Civil War, the Supreme Court stated that it is possible to have undeclared defacto wars. Both sides of a conflict do not have to sovereign nations for a war to exist (Reading #12, p. 19). In defacto wars, the laws of war still apply. Those taken captive by the U.S. military and the CIA in connection with the war on terror are prisoners of war and therefore the United States must comply with Section 2340A of U.S. Code and the Geneva Conventions when interrogating.
The CIA has requested authorization to use several integration techniques on Nasir al-Wuhayshi. The first is waterboarding. The CIA cannot waterboard al-Wuhayshi. Section 2340A says the threat of imminent death is torture. Waterboarding is simulated drowning and therefore violates the section.
The CIA would like to use sleep deprivation on al-Wuhayshi. Sleep deprivation can alter the senses and personality. It can cause hallucinations, paranoia and brain damage. This is barred under Section 2340A. Sleep deprivation can be interrupted as causing prolonged mental pain. The CIA cannot use sleep deprivation as an interrogation technique.
The CIA discovered that al-Wuhayshi is afraid of sharks. They requested that he be put in a tank with lemon sharks. The agency believes that lemon sharks look menacing but are harmless, unless provoked by a human. Al-Wuhayshi reaction to the sharks could easily provoke the fish. This can result in his death. There are too many unknown variables to incorporate animals in interrogation. This technique should not be authorized.
Lastly the CIA wants to deprive al-Wuhayshi of food or water for several days. They understand this could cause the body to go into shock. The CIA claims they will have doctors ready to intervene if this happens. Food and water depravation can also result in muscle spasms, convulsions and hallucinations. This technique disrupts the senses, can cause lasting bodily harm and may result in death. Food and water depravation for several days clearly violates Section 2340A.
There are a plethora of traditional legal integration techniques that are available for the CIA to use. The FBI has already obtained important information from al-Wuhayshi using traditional law enforcement techniques. There is no reason why the CIA cannot continue this progress using the same techniques.
There is a movement in the United States to reform and legalize torture. The movement draws its arguments from hypothetical scenarios in which torture is the only technique that can be employed to obtain the desired results in time. The most widely sited of these hypotheticals is the ticking time bomb scenario. A creative individual can conjure up an anecdotal hypothetical to justify the use of any policy.
Be that as it may, the Office of Legal Counsel recognizes that there are extreme scenarios such as the ticking time bomb where torture can prevent an imminent attack on American civilians. That does not mean torture techniques should be legal for all cases in connection with the war on terror. The United States should not be making broad policy based on a narrow and improbable hypothetical.
Torture can remain illegal on a board level and still be used under extreme circumstances.
An individual can be excused from a crime if it is committed to prevent a more serious crime. If someone crashes their car into a store to avoid running over a child, they can be excused from the damages to the store. If it can be proven that a terrorist attack is imminent and proven that a detainee in our custody knows the necessary information to prevent it, interrogators can torture the prisoner. They will still be committing a crime but in order to save American lives. In Justice Black’s majority opinion of Korematsu v. United States (1944) he stated that the Japanese internment camps were constitutionally suspect but justifiable during times of “emergency and peril (Reading #8, p. 20).” The same could be said of the ticking time bomb scenario.
The CIA has justified their request for the use of these interrogation techniques by stating that al-Wuhayshi may have information regarding future plans to attack the United States. The agency is concerned that terrorists may strike around the tenth anniversary of the September 11, 2001 attacks. CIA interrogators would need to prove in court that they know this attack is being planned and is not a theory and that torturing al-Wuhayshi is the only method at their disposal to prevent it. If the CIA cannot do that then they will have to stick with traditional law enforcement techniques or face prosecution.
Please let us know if we can be of further assistance.
Jesse Medalia Strauss
Deputy Assistant Attorney General