The Defense of Torture


Before 2004, few Americans had ever heard of the Office of Legal Counsel or knew the power it wields. A small, elite law office within the Justice Department, the OLC is inconspicuous, and many of its opinions remain secret. Its two dozen lawyers provide legal advice to the entire executive branch of government and by custom, if not law, its opinions are binding on federal agencies. That gives the office substantial power. The OLC attracts talented lawyers, and its alumni include Supreme Court justices, solicitors general, attorneys general, and distinguished academics.

The OLC has gained notoriety in recent years almost entirely because of John Yoo, a law professor it employed from 2001 to 2003. In April 2004, five weeks after the Abu Ghraib revelations transfixed the country, newspapers broke the story of a secret “torture memo,” written by OLC lawyers in August 2002. Torture is a serious federal crime, but the torture memo provided interrogators with the authority to act with maximum impunity. It concluded that inflicting physical pain does not count as torture unless the interrogator specifically intends the pain to reach the level associated with organ failure or death; that inflicting mental suffering is lawful unless the interrogator intends it to last months or years beyond the interrogation; that enforcing criminal laws against presidentially authorized torturers would be unconstitutional; that lawful self-defense can include torturing helpless detainees in the name of national defense; and that interrogating detainees under torture may be justifiable as the lesser evil, through the legal defense of necessity.1

The memo’s legal arguments were widely regarded as preposterous. It defined torture by using language from a Medicare statute on medical emergencies, ignored inconvenient Supreme Court precedents, misrepresented sources, and at one point argued that while torture might be justified as a lesser evil, the same would not necessarily be true of lifesaving abortions.

The torture memo could hardly have been leaked at a worse time. The Bush administration was scrambling to reassure the world that Abu Ghraib was an aberration, not a result of official US policy. The OLC’s opinion on torture had been signed by its head, Jay S. Bybee (now a federal judge), and is also known as the Bybee memo. But news reports soon made clear that John Yoo, not Bybee, was the principal author. Attorney General John Ashcroft hastily disowned the memo, and the OLC withdrew it and replaced it with a second memo on interrogations and treatment of detainees a week before Alberto Gonzales’s confirmation hearing for attorney general began on January 6, 2005. Lawyers who worked on the torture memo were subjected to an internal investigation by the Justice Department. (No independent investigation has yet been carried out.) As Yoo makes clear in War by Other Means, he remains bitter about his repudiation by the Justice Department and his disdain for Ashcroft is palpable. He correctly observes that the OLC’s substitute memo made mostly cosmetic changes, and approved the same treatment of detainees as the original torture…

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