By Kenneth J. Theisen and Stephanie Tang
OK to crush a child’s testicles:
Cassel: “If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”
Yoo: “No treaty.”
Cassel: “Also no law by Congress. That is what you wrote in the August 2002 memo.”
Yoo: “I think it depends on why the President thinks he needs to do that.”
(12/1/05 Chicago: Yoo in a debate with Notre Dame professor and international human rights scholar Doug Cassel.)
What constitutes torture?
In an August 1, 2002 memo Yoo defines torture as physical pain that must be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” His narrow definition resulted in torture routinely being used by both the military and intelligence agencies.
Can Congress limit the conduct in interrogations?
“Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President….Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.”
Defense to criminal prosecution – if the president says it is ok, then it is
“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
Yoo memos that gave “legal cover” for Bush regime crimes
Yoo authored or co-authored many memos that provided “legal” guidance to the executive branch while he was in DOJ’s Office of Legal Counsel (OLC). OLC is generally the “last say” as to what is legal or illegal for the executive branch of government and that is why what Yoo wrote was so critical to enable the Bush regime to proceed with its agenda. He was asked to write these legal memos to provide legal cover for the Bush regime to carry out various crimes. Many refer to OLC legal memos as “get out of jail free cards” as they make the likelihood of prosecution less likely for anyone that follows them, even if they have committed crimes. The defendants can raise the legal memos as a defense. (Most of Yoo’s memos can be found at: http://en.wikipedia.org/wiki/John_Yoo.)
The Bybee memo: Giving the green light for torture
After capturing alleged high-ranking al Qaida members, the CIA requested legal advice from the Bush administration as to what was allowable during interrogation to see how far they could go in torturing prisoners without the fear of being prosecuted. Alberto Gonzales directed the OLC to provide an answer. OLC drafted a response that was signed by Jay Bybee. (It is believed that John Yoo, with aid from David Addington, was the real principal author.)
This document is the first known one to utilize Yoo’s definition that says, physical pain "must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death." It said mental pain "must result in significant psychological harm of significant duration, e.g., lasting for months or even years," and must be the result of one of the specific causes of mental pain contained in 18 USC 2340, "namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party."
It went on to state that even if an act is "cruel, inhuman, or degrading," it does not necessarily inflict the level of pain that 18 USC 2340 prohibits, and thus does not subject an interrogator to criminal prosecution. It further asserted that a defense of "necessity or self-defense may justify interrogation methods" that violate 18 USC 2340. In essence the memo gave the green light for the use of torture and the CIA then proceeded to use torture in its interrogations, including extensive use of waterboarding.
Real people became victims of Yoo’s legal opinions
Let us meet just three victims of Yoo’s memos supporting torture.
Mohammed el Gharani was only 14 years old when he was accused by the U.S. military of being part of al-Qaida. He was arrested in Pakistan and sent to Guantanamo Bay where he was held until a federal judge in January 2009 said there was no credible evidence against him and ordered his release. El Gharani’s lawyers pointed out to the court that he would have been 11 in 1998, when he is accused of being part of an al-Qaida cell in England. He was not the only minor held at Guantanamo or other hellhole prisons run by the U.S. military. But Yoo and other lawyers of the Bush regime denied that he and other prisoners were entitled to the protections of international laws or even U.S. laws. Prisoners in these hellholes have been subjected to torture. In many cases they have been murdered or died as a direct result of their treatment at the hands of U.S. authorities.
Jose Padilla is a U.S. citizen who was arrested on May 8, 2002. President Bush designated him an “illegal enemy combatant.” According to Yoo’s memos this allowed the government to hold Padilla indefinitely without recourse to the ordinary Constitutional protections afforded to the accused. As a result, Padilla was held incommunicado, in isolation, for years, while being subjected to torture and abuse. Padilla’s treatment has caused not only physical pain, but extreme emotional and mental anxiety, to the extent that his defense attorneys maintained he was mentally unfit to stand trial. Yoo has been sued by Padilla on the grounds that Padilla’s torture was the result of Yoo’s memos.
Mohammed Jawad, like el Gharani, is another of the hundreds of children detained and tortured by the Bush-Cheney Torture State. Jawad was 12 or 13 when imprisoned at Guantanamo, and has spent 6 years being inhumanly tortured there. We urge readers to read the ACLU files in his defense and look up the facts about this heart-sickening example of America’s war of terror.
Mohammed Jawad’s story alone will force you to ask: who is responsible for these unspeakable crimes, and what can we do to bring the crimes to a halt and the criminals to justice?