The Senate about legal responsibility and torture
Koh, Hongju
Ed. Note: There was much to praise in the response of the American people to the attacks of September 11, 2001: the rush to help, to give blood and send gifts; the sympathy for the victims and for...
...His promotion from White House counsel to attorney general, with only polite opposition from Senate Democrats, is, to put it mildly, shameful...
...there were also a few brave lawyers in the State Department and in the armed forces who opposed it...
...custody...
...Torture is one of the shortcuts, a substitute for multilateral police work...
...and the financial regulation necessary to cut off the funding of terrorist groups...
...They greatly admire, on the other hand, what power can do in secret...
...presumably John Kerry's focus groups persuaded him not to make it an "issue...
...With respect to these three issues, my professional opinion is that U.S...
...Article 5 of the Universal Declaration of Human Rights states unequivocally that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment...
...Harold Hongju Koh explained the shamefulness to the Senate, in the text below, excerpted from his testimony on January 7, 2005, to the Senate Committee on the Judiciary...
...Torture did not figure in the presidential election...
...and the applicability of the Geneva Conventions on the Laws of War to alleged combatants held in U.S...
...military culture, which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries...
...It turns out that the opponents of "big government" mean only to set themselves against the public uses of power—to collect taxes, fund the welfare state, and regulate the market...
...government interrogation tactics...
...Concluding that the Geneva Convention does not apply may encourage other countries to look for technical "loopholes" in future conflicts to conclude that they are not bound by GPW either...
...or opposing forces engaged in armed conflict, despite several opportunities to do so...
...a large majority of its members then approved the appointment...
...I]n my professional opinion, the August 1, 2002, OLC Memorandum is perhaps the most clearly erroneous legal opinion I have ever read...
...Gonzales's record and public statements could be read to suggest, first, that the extraordinary threats that we face in the war on terrorism somehow require that the president act above the law and second, that those who are deemed "enemy combatants" or are held on Guantanamo live outside the protections of the Convention Against Torture and the Geneva Conventions as "rights-free persons" in "rightsfree zones...
...Third, the OLC memorandum grossly overreads the inherent power of the president under the commander-in-chief power in Article II of the Constitution...
...Since the onset of the war in Iraq in March 2003, the administration has conceded that the Geneva Conventions apply to that conflict, but more than a year after the invasion, Mr...
...But prisoner abuse at Abu Ghraib and reports of mistreatment on Guantánamo and elsewhere raise serious doubts as to whether this exhortation has been effective...
...Unsuccessfully urging that this policy be reconsidered, Secretary of State Colin Powell argued, It will reverse over a century of U.S...
...The administration could have conducted case-by-case status review hearings as required by Article 5 of the Geneva Conventions, to determine whether POW status might be appropriate in some cases...
...Alberto Gonzales was at least complicit in shaping the legal rationale for torture, and he was explicit in defending it...
...While serving as assistant secretary for democracy, human rights, and labor in 2000, I stated, upon presenting the United States' first report on its compliance with the Convention Against Torture to the United Nations in Geneva, that "as a country we are unalterably committed to a world without torture...
...The "bad egg" theory of Abu Ghraib had a very short life and is already a discredit to the officials and officers who put it forward...
...Fourth, the August 1 memorandum suggests that executive officials can escape prosecution for torture on the ground that "they were carrying out the President's Commander-in-Chief powers...
...government welcomes...
...The opinion's apparent purpose is to explore how U.S...
...Under this reasoning, Taliban fighters, who were acting as the armed forces of Afghanistan at the time, had no legal entitlement even to the humane treatment manDISSENT / Spring 2005 9 COMMENTS & OPINIONS dated by the Conventions...
...10 DISSENT / Spring 2005...
...It has a high cost in terms of negative international reaction, with immediate adverse consequences for our conduct of foreign policy...
...the expense of guarding ports, reservoirs, and transportation centers...
...A determination that GPW does not apply to al Qaeda and the Taliban could undermine U.S...
...Gonzales found that the war on terror presents a "new paradigm [that] renders obsolete Geneva's strict limitations on questioning of enemy prisoners...
...The torture policy is an international crime, and the defense of torture by administration lawyers is an offense against professional ethics and the rule of law...
...or coalition forces captured during operations in Afghanistan, or if they denied Red Cross access or other POW privileges .. . • Our position would likely provoke widespread condemnation among our allies and in some domestic quarters, even if we make clear that we will comply with the core humanitarian principles of the treaty as a matter of policy...
...In the same opinion, he rejected the views of the secretary of state and concluded instead that the United States is not bound by its obligations under the Geneva Conventions in the conflict in Afghanistan...
...It is more than fifty pages long and has been summarized repeatedly in the press...
...Gonzales's January 25, 2002, Memorandum to the President correctly notes, at 2: "Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to either U.S...
...Instead Mr...
...I APPEAR TODAY solely to comment upon Mr...
...There is a reckoning still to come...
...This opinion was not rescinded until last week, more than two years after it [was] first issued...
...Armed Forces to continue to treat all detainees humanely and to the extent appropriate and consistent with military necessity, in "a manner consistent with the principles of [the] Geneva Conventions...
...August 1, 2002, OLC Memorandum at 1. Under this absurdly narrow legal definition, many of the heinous acts committed by the Iraqi security services under Saddam Hussein would not be torture...
...it never attempted to build on the sentiments of solidarity in order to begin a long-term, democratic struggle against zealotry and terror...
...custody...
...Some of the torturing was (and is) done by proxies (there are, it seems, versions of multilateralism that the U.S...
...It will undermine public support among critical allies, making military cooperation more difficult to sustain...
...America stands against and will not tolerate torture...
...By adopting the doctrine of "just following orders" as a valid defense, the opinion undermines the very underpinnings of individual criminal responsibility...
...Ironically, Mr...
...But the Bush administration had no interest in any of this...
...He served as assistant secretary for democracy, human rights, and labor in the Clinton administration...
...officials...
...Gonzales regarding coercive interrogation tactics...
...Id...
...These legal standards apply to all alleged combatants held in U.S...
...It is an issue nonetheless, and it will haunt our nation—as the memory of the Algerian war haunts France today...
...Taken together, Mr...
...Yet as counsel to the president, Mr...
...One would have expected the counsel to the president to have immediately repudiated such an opinion...
...January 25, 2002, Memorandum at 2. In February 2002, the president directed U.S...
...This remains the announced policy of this administration...
...Gonzales did not...
...Freedom from torture is an inalienable human right, and we are committed to building a world where human rights are respected and protected by the rule of law...
...Gonzales requested from the Justice Department's Office of Legal Counsel an opinion regarding Article 49 of the Fourth Geneva Convention...
...Finally, the United States has long recognized the broad applicability of the Geneva Conventions, which is a critical safeguard for our own troops now serving in more than 130 countries around the world...
...FIFTH AND FINALLY, the August 1 OLC memorandum concludes that, for American officials, the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment allows cruel, inhuman, or degrading treatment as permissible U.S...
...the uncertainties of intelligence gathering...
...To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment...
...fostered a sense that we apply double standards and tolerate a gap between our rhetoric and our practice...
...In 1994, the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states in Article 2 that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture...
...officials can use tactics tantamount to torture against suspected terrorists, without being held criminally liable...
...Many members of the Bush administration were involved, directly and indirectly, in formulating the torture policy...
...Gonzales urged a blanket exclusion of the Afghanistan conflict from the operation of the Conventions...
...Despite this unambiguous policy, as the president's chief counsel, Mr...
...Instead, it looked for shortcuts, a search that had two advantages from its perspective: shortcuts were (or were thought to be) cheap and they required a significant augmentation of state power...
...A lawyer has no obligation to aid, support, or justify the commission of an illegal act...
...First, it asks which coercive interrogation tactics are permissible, never mentioning what President Bush correctly called every person's "inalienable human right" to be free from torture...
...law and policy DISSENT / Spring 2005 7 COMMENTS & OPINIONS have been clear and unambiguous...
...These principles were set forth in the landmark judgments at Nuremberg, and [are] now embodied in the basic instruments of international criminal law...
...The opinion has five obvious failures...
...Gonzales's positions regarding three issues on which I have both legal expertise and government experience: the illegality of torture and cruel, inhuman, and degrading treatment...
...In particular, the Third and Fourth Conventions specify terms of detention for prisoners of war and civilians in such conflicts...
...Torture and cruel, inhuman, and degrading treatment are both illegal and totally abhorrent to our values and constitutional traditions...
...Other countries may be less inclined to turn over terrorists or provide legal assistance to us if we do not recognize a legal obligation to comply with the GPW...
...No constitutional authority licenses the president to authorize the torture and cruel treatment of prisoners, even when he acts as commander-in-chief...
...Yet in response, OLC provided a draft opinion asserting that Article 49 does not prohibit temporary relocation of "protected persons" "for a brief but not indefinite period, to facilitate interrogation...
...even the patriotic hoopla, which expressed a genuine readiness to make sacrifices for the common good...
...Far from being outmoded, the Geneva Conventions of 1949, which the United States has ratified, set forth the international humanitarian laws of war applicable to all international armed conflicts...
...laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees...
...Gonzales's legal positions have...
...Gonzales's own memorandum correctly identified, but then rejected, the major problems created by his own legal determination: • The United States could not invoke the GPW [the Geneva Conventions] if enemy forces threatened to mistreat or mistreated U.S...
...Second, the opinion defines "torture" so narrowly that it flies in the face of the plain meaning of the term...
...We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction...
...the sympathy for the victims and for the police, firefighters, and medics who tried to rescue them...
...Gonzales apparently requested a number of legal memoranda setting forth the administration's legal framework for conducting the war on terrorism...
...A legal opinion that is so lacking in historical context, that offers a definition of torture so narrow that it would have exculpated Saddam Hussein, that reads the commanderinchief power so as to remove Congress as a check against torture, that turns Nuremberg on its head, and that gives government officials a license for cruelty can only be described— as my predecessor Eugene Rostow described the Japanese internment cases—as a "disaster...
...Of these, the most important is an August 1, 2002, memorandum from Jay S. Bybee of the Office of Legal Counsel (OLC) to Mr...
...policy and practice in supporting the Geneva Conventions and undermine the protections of the rule of law for our troops, both in this specific conduct and in general...
...That provision unequivocally states that "[i]ndividual or mass forcible transfers of protected persons [e.g...
...at 35...
...If a client asks a lawyer how to break the law and escape liability, the lawyer's ethical duty is to say no...
...Yet if this were true, the same treatment would arguably apply to American soldiers sent to the Afghan War...
...HAROLD HONGJU KOH is dean of the Yale University Law School...
...For example, the memorandum would require that the interrogator have the precise objective of inflicting "physical pain . . . equiva8 DISSENT / Spring 2005 COMMENTS & OPINIONS lent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death...
...But we should not discount the enormous costs to our reputation as a leader on human rights and the rule of law from the perception that we have waged a war on terror by skirting the Torture Convention, upsetting constitutional checks and balances, opening loopholes in the Geneva Conventions, and creating extralegal persons and extralegal zones...
...Obviously, our country has faced a dangerous threat since September 11 [2001], and we expect our leading officials to respond...
...American personnel are required to comply with all U.S...
...In June [of 2004], President Bush reiterated: Today . . . the United States reaffirms its commitment to the worldwide elimination of torture...
...noncombatant civilians] from occupied territory . . . are prohibited, regardless of their motive...
...the scope of the president's constitutional powers to authorize torture and cruel treatment by U.S...
...The August 1 OLC memorandum cannot be justified as a case of lawyers doing their job and setting out options for their client...
...Truth to tell, the continued tenure of Donald Rumsfeld as secretary of defense, on which the Senate will never vote, is an even greater shame...
...Some of the torturing was done by American soldiers and intelligence operatives, who clearly were acting with government authorization...
...As Americans, we are unalterably committed to the rule of law and the notion that every person has certain inalienable rights...
Vol. 52 • April 2005 • No. 2
