The Torture Memo John Yoo Should Have Written

Tuesday 02 March 2010

by: Stephen Rohde  |  The Daily Journal

(Image: Jared Rodriguez / t r u t h o u t; Adapted: YooTube, daliborlev)

February 19, the Department of Justice released the long-awaited
261-page Report of the Office of Professional Responsibility (OPR),
which concluded, among other things, that in his legal memos on torture
and Presidential power, John Yoo had "committed intentional
professional misconduct when he violated his duty to exercise
independent legal judgment and render thorough, objective, and candid
legal advice." A senior Justice Department official, acknowledged that
he had not reviewed all the documents available to the OPR, found that
Yoo exercised "poor judgment" and that Yoo’s memos were "flawed,"
"one-sided and conclusory" and "wrong," in various respects, but
nevertheless declined to accept the report or refer Yoo for
disciplinary action, leaving this decision to the state bars.

Also See: Jason Leopold | DOJ Report on Torture Memo: Yoo Said Bush Could Order "Massacre" of Civilians

Given what we now know, here is the memo John Yoo should have submitted to President George W. Bush:

Standards of Conduct for Interrogation Under 18 U.S.C. Sections 2340-2340A

Submitted by the Department of Justice Office of Legal Counsel (OLC) to Alberto R. Gonzales, White House Counsel

August 1, 2002


In the wake of the heinous and unprovoked attacks on
the United States on Sept. 11, 2001, the Central Intelligence Agency
(CIA) and other agencies of the U.S. government initiated
investigations into those events. The CIA has asked us to provide a
legal analysis on what standards of conduct govern their interrogations
of persons taken into custody as part of these investigations. In
particular, the CIA has asked us to define the scope of the term
‘torture" and whether certain methods of enhanced interrogation,
including but not limited to the practice known as "waterboarding," are
lawful under applicable law.

It is well-established that at the OLC, "we strive
in our opinions for clarity and conciseness in the analysis and a
balanced presentation of arguments on each side of an issue….OLC’s
interest is simply to provide the correct answer on the law, taking
into account all reasonable counterarguments, whether provided by an
agency or not."

The courts have frequently observed that the
government has an overriding obligation to see that justice is done,
and that such an overriding obligation imposes an expectation of even
greater candor on government counsel than attorneys representing
private parties. See, e.g., Berger v United States, 295 U.S. 78, 88

Furthermore, lawyers at the OLC must conduct
themselves consistent with the Model Rules of Professional
Responsibility, which require that "a lawyer shall exercise independent
professional judgment and render candid advice." Rule 2.1.

The OLC is mindful that by giving advance advice, it
is our most solemn duty to resist any temptation or pressure to
dispense get-out-of-jail-free cards by immunizing government officials
where in our independent and candid judgment the law does not sustain
such a legal conclusion. We do a great disservice to the President and
to the Constitution by merely offering subservient opinions which
dutifully rubber-stamp the wishes of the President or any agency to act
in a pre-ordained manner regardless of whether it is lawful.

Torture Is Unlawful Under American Law and Waterboarding Is Torture

Torture has not been deemed available or acceptable
as an interrogation tool in the Anglo-American legal tradition since
well before the drafting of the U.S. Constitution. Torture is expressly
prohibited by federal statute, 18 U.S.C Sections 2340-2340A and under
the Convention Against Torture and Cruel, Inhumane and Degrading
Treatment and Punishment ("CAT"). Torture means "an act committed by a
person acting under the color of law specifically intended to inflict
severe physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions) upon another person within
his custody or physical control." The statute contains detailed
definitions of the key terms.

Insisting that the CIA and other agencies
scrupulously forebear from torture is dictated by the fact that "the
right to be free from official torture is fundamental and universal, a
right deserving of the highest status under international law, a norm
of jus cogens." Siderman de Blake v Republic of Argentina, 965 F. 2d
699, 717 (9th Cir.), cert denied, 507 U.S. 1017 (1993).

The Torture Statute applies to the President’s
detention and interrogation of detainees and is not rendered
inapplicable by reason of his role as Commander in Chief. Under the
Constitution, the President must "take care that the laws be faithfully
executed" and takes an oath to "preserve, protect and defend the
Constitution of the United States." The President serves the best
interests of the Nation by setting a high standard of fidelity to the
Rule of Law, as an example to the world that even in times of crisis or
war, the United States will not sacrifice strict adherence to our
Constitution and our laws in the name of national security. See, e.g.
Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579 (1952).

Only five months ago, on March 13, 2002, our Office
issued an opinion to the Department of Defense confirming that the
Torture Statute "applies to official conduct engaged in by United
States military personnel." It would violate our professional and
ethical responsibilities to ignore our own very recent opinion in this

No memorandum discussing torture would be complete
and accurate without pointing out that under Article 2(2) of CAT "[n]o
exceptional circumstances whatsoever, whether a state of war or a
threat or war, internal political instability or any other public
emergency, may be invoked as a justification of torture." Consequently,
we must advise the CIA in no uncertain terms that general criminal
defenses such as "necessity" or "self defense" would not be available
were a CIA agent to be charged with violating the Torture Statute.

Turning to the specific practice of waterboarding,
i.e. the use of water to induce the sensation of drowning and
suffocation in a detainee, the U.S. government has historically
condemned various forms of water torture and has punished those who
applied it, including Japanese soldiers in World War II and American
soldiers during the American occupation of the Philippines after the
1898 Spanish-American War. In the litigation against Philippine
President Ferdinand Marcos, the "water cure" was found to be both "a
human rights violation" and a "form[] of torture." In United States v
Carl Lee, 744 F. Ed 1124 (5th Cir. 1984) four Texas police officers
were convicted of civil rights violations for coercing confessions from
prisoners by use of "water torture."

Accordingly, to put it simply and clearly so as to
leave no doubt, the CIA is expressly advised that waterboarding is
torture prohibited under U.S. and international law.


As we approach the one year anniversary of the
horrifying events of September 11, sufficient time has passed to allow
our Office to conduct the kind of calm and sober analysis that the
Executive Branch has come to expect of us. Indeed, no immediate crisis
or level of fear excuses the lawyers in the OLC from providing our most
independent, complete and candid advice.

We are well aware that some in the CIA, in the
Executive Branch and indeed, in the country anticipated that we would
find a way to issue an opinion narrowly construing the prohibition on
torture so as to authorize a wide range of "enhanced interrogation
techniques," including waterboarding. They will be disappointed in this

The lessons of history as reflected in the
development of American law have taught us time and again that our
Nation is most shamed when in times of crisis, foreign and domestic,
those who knew better were driven by fear, ambition or currying favor
with those in authority to shape their judgments to fit immediate
political imperatives regardless of the dictates of the law.

To respect the honorable traditions of the Office of
Legal Counsel and to truly serve the President, this opinion reflects
our independent professional assessment of the legal issues we have
addressed. To do otherwise would ensure that someday in the not to
distant future, the legal counsel responsible for this memo would stand
in shame before the American people for having betrayed them and the

John Yoo

Deputy Assistant Attorney General

Stephen Rohde, a constitutional lawyer, is Chair
of the American Civil Liberties Union Foundation of Southern California
and author of “American Words of Freedom" and "Freedom of Assembly.”

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