Testimony of Marjorie Cohn

The Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, says, “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 for torture.” 

Whether someone is a POW or not, he must
always be treated humanely; there are no gaps in the Geneva Conventions.
He must be protected against torture, mutilation, cruel treatment, and
outrages upon personal dignity, particularly humiliating and degrading
treatment under, Common Article 3. In Hamdan v. Rumsfeld, the
Supreme Court rejected the Bush administration’s argument that Common
Article 3 doesn’t cover the prisoners at Guantánamo. Justice Kennedy
wrote that violations of Common Article 3 are war crimes. 

We have federal laws that criminalize
torture. The War Crimes Act punishes any grave breach
of the Geneva Conventions, as well as any violation of Common Article
3. That includes torture, willfully causing great suffering or serious
injury to body or health, and inhuman, humiliating or degrading treatment. 

The Torture Statute provides for life
in prison, or even the death penalty if the victim dies, for anyone
who commits, attempts, or conspires to commit torture outside the United
States. 

The U.S. Army Field Manual’s provisions
governing intelligence interrogations prohibit the “use of force,
mental torture, threats, insults, or exposure to unpleasant and inhumane
treatment of any kind.” Brainwashing, mental torture, or any other
form of mental coercion, including the use of drugs, are also prohibited. 

Military personnel who mistreat prisoners
can be prosecuted by court-martial under provisions of the Uniform Code
of Military Justice. These include conspiracy, cruelty and maltreatment,
murder, manslaughter, maiming, sodomy, and assault. 

In Filartiga v. Peña-Irala, the
Second Circuit declared the prohibition against torture is universal,
obligatory, specific and definable. Since then, every U.S. circuit court
has reaffirmed that torture violates universal and customary international
law. In the Paquete Habana, the Supreme Court held that
customary international law is part of U.S. law. 

The Constitution gives Congress the power
to make the laws and the President the duty to carry them out. Yet on
February 7, 2002, President Bush, relying on memos by lawyers including
John Yoo, announced that the Geneva Conventions did not apply to alleged
Taliban and Al Qaeda members. Bush said, however, “As a matter
of policy, the United States Armed Forces shall continue to treat detainees
humanely and, to the extent appropriate and consistent with
military necessity, in a manner consistent with the principles of
Geneva.” But torture is never
allowed under our laws. 

Lawyers in the Department of Justice’s
Office of Legal Counsel wrote memos at the request of high-ranking government
officials in order to insulate them from future prosecution for subjecting
detainees to torture. In memos dated August 1, 2002 and March 18, 2003,
former Deputy Assistant Attorney General John Yoo (Jay Bybee, now a
federal judge, signed the 2002 memo), advised the Bush administration
that the Department of Justice would not enforce the U.S. criminal laws
against torture, assault, maiming and stalking, in the detention and
interrogation of enemy combatants. 

The federal maiming statute makes it
a crime for someone “with the intent to torture, maim, or disfigure”
to “cut, bite, or slit the nose, ear or lip, or cut out or disable
the tongue, or put out or destroy an eye, or cut off or disable a limb
or any member of another person.” It further prohibits individuals
from “throwing or pouring upon another person any scalding water,
corrosive acid, or caustic substance” with like intent. 

Yoo said in an interview in Esquire
that “just because the statute says — that doesn’t mean you have
to do it.” In a debate with Notre Dame Professor Doug Cassell,
Yoo said there is no treaty that prohibits the President from torturing
someone by crushing the testicles of the person’s child. In Yoo’s view,
it depends on the President’s motive, notwithstanding the absolute prohibition
against torture in all circumstances. 

The Torture Convention defines torture
as the intentional infliction of severe physical or mental pain or suffering.
The U.S. attached an “understanding” to its ratification of
the Torture Convention, which added the requirement that the torturer
“specifically” intend to inflict the severe physical or mental
pain or suffering. This is a distinction without a difference for three
reasons.  

First, under well-established principles
of criminal law, a person specifically intends to cause a result when
he either consciously desires that result or when he knows the result
is practically certain to follow. Second, unlike a “reservation”
to a treaty provision, an “understanding” cannot change an
international legal obligation. Third, under the Vienna Convention on
the Law of Treaties, an “understanding” that violates the
object and purpose of a treaty is void. The claim that treatment of
prisoners which would amount to torture under the Torture Convention
does not constitute torture under the U.S. “understanding”
violates the object and purpose of the Convention, which is to ensure
that “no one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.” The U.S. “understanding”
that adds the specific intent requirement is embodied in the U.S. Torture
Statute. 

Nevertheless, Yoo twisted the law and
redefined torture much more narrowly than the definitions in the Convention
Against Torture and the Torture Statute. Under Yoo’s definition, the
victim must experience intense pain or suffering equivalent to pain
associated with serious physical injury so severe that death, organ
failure or permanent damage resulting in loss of significant body functions
will likely result. 

Yoo wrote that self-defense or necessity
could be used as a defense to war crimes prosecutions for torture, notwithstanding
the Torture Convention’s absolute
prohibition against torture in all
circumstances. There can be no justification for torture. 

After the exposure of the atrocities
at Abu Ghraib and the publication of the August 1, 2002 memo, the Department
of Justice knew the memo could not be legally defended. That memo was
withdrawn as of June 1, 2004. A new opinion, authored by Daniel Levin,
Acting Assistant Attorney General Office of Legal Counsel, is dated
December 30, 2004. It specifically rejects Yoo’s definition of torture,
and admits that a defendant’s motives to protect national security
will not shield him from a torture prosecution. The rescission of the
August 2002 memo constitutes an admission by the Justice Department
that the legal reasoning in that memo was wrong. But for 22 months,
it was in effect, which sanctioned and led to the torture of prisoners
in U.S. custody. 

John Yoo admitted the coercive interrogation
“policies were part of a common, unifying approach to the war on terrorism.”
Yoo and other Department of Justice lawyers, including Jay Bybee , David
Addington, William Haynes and Alberto Gonzalez, were part of a common
plan to violate U.S. and international laws outlawing torture. It was
reasonably foreseeable that the advice they gave would result in great
physical or mental harm or death to many detainees. Indeed, more than
100 have died, many from torture. 

ABC News reported last month that the
National Security Council Principals Committee consisting of Dick Cheney,
Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John
Ashcroft met in the White House and micromanaged the torture of terrorism
suspects by approving specific torture techniques such as waterboarding.
Bush admitted, “yes, I’m aware our national security team met on
this issue. And I approved.” These top U.S. officials are liable
for war crimes under the U.S. War Crimes Act and torture under the Torture
Statute. They ordered the torture that was carried out by the interrogators.
Under the doctrine of command responsibility, used at Nuremberg
and enshrined in the Army Field Manual, commanders, all the way up the
chain of command to the commander in chief, can be liable for war crimes
if they knew or should have known their subordinates would commit them,
and they did nothing to stop or prevent it. 

The Bush officials ordered the torture
after seeking legal cover from their lawyers. But Yoo and the other
Justice Department lawyers who wrote the enabling memos are also liable
for the same offenses. They were an integral part of a criminal conspiracy
to violate our criminal laws. Yoo admitted in an Esquire
interview last month that he knew interrogators would take action based
on what he advised. 

The President can no more order the commission
of torture than he can order the commission of genocide, or establish
a system of slavery, or wage a war of aggression. A Select Committee
of Congress should launch an immediate and thorough investigation of
the circumstances under which torture was authorized and rationalized.
The high officials of our government and their lawyers who advised them
should be investigated and prosecuted by a Special Prosecutor, independent
of the Justice Department, for their crimes. John Yoo, Jay Byee, and
David Addington should be subjected to particular scrutiny because of
the seriousness of their roles in misusing the rule of law and legal
analysis to justify torture and other crimes in flagrant violation of
domestic and international law.