John Yoo and Alberto Gonzales discuss "the torture memos" nine years later.

John Yoo and Alberto Gonzales discuss "the torture memos" nine years later.

John Yoo and Alberto Gonzales discuss "the torture memos" nine years later.

The law, lawyers, and the court.
Aug. 1 2011 6:04 PM

You Say Torture, I Say Coercive Interrogation

The conversation about torture we should have had 10 years ago.

Former Department of Justice offical John Yoo. Click to expand image.
John Yoo

This weekend, I had the privilege of moderating a discussion about law and the war on terror hosted by the Aspen Security Forum in Aspen, Colo. The participants were: Bill Bratton, former chief of the Los Angeles Police Department and former commissioner of the New York Police Department; professor David Cole of the Georgetown University Law Center; Alberto Gonzales, former attorney general of the United States and White House counsel; Anthony Romero, the executive director of the ACLU; and Professor John Yoo, former deputy assistant attorney general at the Office of Legal Counsel.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Today, on the ninth anniversary of one of the so-called "torture memos," the need for a conversation about law, terror, and accountability in open, public debates is as urgent as it ever was. Maybe even more so. I urge you to watch the panel in its entirety. Below I have excerpted and edited key portions. Transcription errors are all my own.

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Gonzales: "I believe it's important for the most powerful person in the world, the president of the United States, to be constrained by some rules, and, as lawyers, what we endeavor to do is provide to the president the box in which he can operate. As a policy-maker, he would decide how close to the edge of the box he could get, but what he expected of the lawyers and … John Yoo in the Department of Justice, was to define that box for the president. …

"I thought it important for the president to have as many options as possible. I thought it important to have the criminal justice system available to deal with people who were captured and that we have the military justice system available as well. Now there were some in the administration who believed everyone involved in terrorism should be dealt with through military commissions and detained indefinitely. I wasn't of that mindset. I believed our criminal justice system was available and appropriate to bring people to justice."

Romero: "There is no greater threat to securing the homeland than America's willing abdication of her moral authority at home and abroad, and the utter lawlessness of the Bush years, beginning with the surveillance of American citizens without congressional approval or the review of the judiciary; the detention of American citizens without charges or trial, apprehended on American soil as enemy combatants; the establishment of black sites, where torture was committed—not enhanced interrogation techniques, not these lovely little euphemisms for that which is unconstitutional, illegal, and war crimes; and the absence of ensuring accountability for crimes committed by Americans and authorized at the highest level of our government. And that breakdown of the rule of law is equivalent to the meltdown of the financial system. The complete legal system turned on its head. Boxes were broken. Rules were changed. …

"There is no greater set of conversations that needs to be had; this is a set of issues that is too often done behind closed doors among reified parts of the American government ... and perhaps the most important thing we can do is break open this conversation ... and thrash out these issues openly ... about the country we want to live in. …

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"I think the Obama administration also deserves to be called on the carpet for its unwillingness to take on these issues with the seriousness they deserve. ... This president has come too short, too little, often too late. ... That effort of putting one's head in the sand and the effort to push forward will only mire us in the past."

Yoo: "I don't think the biggest threat to American security is a claim that there is some kind of lawlessness or broad unconstitutionality going on here. ... The ACLU has blurred the rules of war and made it seem like the rules of war are seeping into the domestic system, that a separate body of ways to act against an enemy are being transplanted into the American political, domestic system. ... I don't think that there has been any huge disorder or disruption or pulling back on civil liberties for Americans in the United States. ... Ask yourselves, have civil liberties really declined in any significant way in the country? …

"I think that because of people's unfamiliarity with the rules of war, rather than the normal police rules ... and when they see the rules of war—when they see that you can have detention without trial in wartime, they think it's a violation of civil liberties. …

"If you were really worried about civil liberties, you would be jumping up and down yelling and screaming about targeted drone killings just as much as, if not more than, what I do prefer to call aggressive or coercive interrogation and not torture. Because in drone killings, we are not just putting pressure on people to give us information about where Osama Bin Laden is; we are killing them. We are depriving them of their fundamental human right, which is to be alive. ... I don't see the civil liberties crowd or the media jumping up and down claiming that we are engaging in massive human rights deprivations even though this administration has ... killed way more people using drones than were ever water-boarded by the Bush administration. I think the figure the CIA guys gave yesterday was three people."

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Cole: "The rule of law is actually much more resilient than many cynics thought and many people would have predicted on 9/11. ... On 9/11, had you said to somebody that the United States is not going to get away with doing whatever it wants to respond to this attack, you would have been laughed at. Who was going to stop us? ... I think that is actually the mindset that unfortunately operated. I don't see much of a box that John Yoo or Alberto Gonzales created for the president, unless the box has infinite lines. Alberto Gonzales said the Geneva Conventions are quaint, obsolete, irrelevant, and don't apply. John Yoo said that law doesn't apply when the president is acting as commander in chief. As commander in chief he can ignore the fact that Congress has made it a crime to commit torture. He can ignore the fact that Congress has made it a crime to wiretap people without judicial approval. ... Where is the box? If international law doesn't bind, if constitutional law doesn't bind, if the president is able to do whatever he wants?

"But on each one of those measures, the Bush administration was forced to retreat once these policies became public ... and the rule of law reasserted itself, and so the second part of the Bush administration was much more consistent with the rule of law than the first part of the Bush administration. The Obama administration came in and further asserted the force of the rule of law, banning torture, closing the CIA black sites, releasing the torture memos, insisting the fight against al-Qaida must be fought within the rule of law and not in spite of the rule of law."

Gonzales: "The concerns we are seeing about criminal trials in New York City are based upon specific circumstances. I think it's wrong to say that criminal trials for all terrorists are off the table. We know the [Justice] Department is capable of prosecuting terrorists in our criminal-justice system. …

"Let me just respond to Professor Cole about operating outside the rule of law. I can't tell you the number of hours the lawyers spent ... working through these issues. Because the president made [it] very clear to me that we were going to operate under the rule of law, and it was our job to frame that box for the president of the United States. ... The notion that we sought to create an environment where this administration could operate outside the rule of law is just wrong."

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Romero: "The recent incident with the Somali who was held for 60 days on a naval ship before he was given his rights and then brought to law enforcement was not change; it's too much the same. ... It raises significant questions for the Obama administration. They are reaching a crossroads in which they are increasingly compared to the policies of George Bush. They made illegal that which was always illegal. That which still requires a level of debate and discussion about detention and the rights of detainees and where they are apprehended continue to be muddy waters for the Obama administration. …

"If President Bush was the architect of a system of impunity and lawlessness, it has been the lack of actions in certain key places by the Obama administration that has made President Obama the willing accomplice of George Bush. Nowhere has that been more important than the failure to prosecute at the highest levels of office for those that made mistakes in drafting memos that enabled American soldiers to break the law."

Yoo: "I agree with the starkness of the way [Romero] pitched the question. I think the ACLU ... would take us back to the world of Sept. 10, 2001, where the primary method for fighting terrorism was the criminal justice paradigm. ... There shouldn't be military commissions, there shouldn't be detentions without trial, there should be no Gitmo. We should be giving every terrorist a lawyer, give every terrorist a trial in civilian court, preferably downtown in New York City for Khalid Sheikh Mohammed. ... The events of Sept. 11, 2001, showed that that system failed. … If we had kept to those methods, we would not have achieved the successes that have occurred under the Bush and the Obama administrations. ... Take a look at how we were able to kill al-Qaida's leader this year. How did we get the intelligence for finding Bin Laden's couriers and ultimately Bin Laden? It was a combination of interrogation methods, sometimes tough or harsh, you can call it torture. I don't call it torture. You can repeat the word torture all the time, I can repeat coercive interrogation all the time. Take a look at the actual methods, and people can decide for themselves whether they constitute torture or not."

Cole: "There has been a great deal of debate in the wake of the Osama Bin Laden killing as to whether there is any basis for the claim that enhanced interrogation techniques led to the finding eight years later of Osama Bin Laden, and most people say no, including Donald Rumsfeld, who said there was absolutely no connection until he heard that people like John [Yoo] and Dick Cheney were saying, yes, there was a connection, and then he said maybe there was a connection. ... It's a very speculative claim at best. But more importantly, the argument that torture works isn't a justification for torture. The reason the world has put torture off the table ... the reason it's a central provision of the Geneva Conventions is not that it doesn't work. It's that it's wrong. …

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"I believe you, Judge Gonzales, when you say that lawyers spent a lot of time. ... But they spent a lot of time not seeking to conform the policies to the law, but seeking to bend the law to allow the president and the CIA to do whatever they want. And that is not the appropriate role of the lawyer in the Justice Department. …

"There's a general recognition that that was wrong. When you look at what John Yoo's successors said about his memo. Michael Mukasey, that it was slovenly. Jack Goldsmith, that it was riddled with errors. The Office of Professional Responsibility of the Justice Department, that his ideology overcame his commitment to providing honest advice. ... I think that's a broadly shared view now."

Gonzales: "Congress criminalized extreme acts by statute, and nobody's ever been prosecuted under it. And that's why the work of the Department of Justice was so critical in the early days of the war on terrorism. The intentional infliction of severe physical or mental pain or suffering—the statute that arose reflects Congress' intent of what constitutes torture. Only those extreme acts. We are not to engage in acts that are cruel, inhumane, and degrading. But what does that mean? We know it's not the same as extreme acts of torture. We know Congress did not criminalize cruel, inhumane, and degrading. ... It would only constitute cruel and degrading if it violates the Constitution. That standard is: Does it shock the conscience given the circumstances?"

Romero: "That analysis fails to account for the fact that the American government prosecuted Japanese soldiers for water-boarding American soldiers. ... So let's just read the language. [READS from Memo] 'The water-board, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict "severe pain or suffering." Even if one were to parse the statute more finely to attempt to treat "suffering" as a distinct concept, the water-board could not be said to inflict severe suffering. The water-board is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.' …

"Now. That's the best analysis our lawyers could come up with."

Yoo: "Let's take it away with the dramatic accents here. The Dickensian ... I don't know what to call your very good actors' interpretation of the memo. ... Yesterday we were talking about hindsight bias, and lawyers are very guilty of hindsight bias. Saying, 'Oh, the answer is obviously clear, how could you not know?' ... So, what did we do? We went back and looked at all the soldiers who had gone through SERE training, which is where I take it the CIA actually developed these interrogation methods, and we went back and said what are the medical results of all the people who went through SERE training? The Department of Defense reported back that the percentage of soldiers who'd had any kind of negative reaction psychologically because there were no reports of physical negative reactions was something like under 1 percent. It's easy now, 10 years after 9/11, after you've gotten the benefits to achieve the victories against al-Qaida to say you went too far. …

"I think it's the obligation of people who sit in comfortable offices in Washington, D.C., and they send men and women out there into the field to carry out these fights to be as precise as possible, and to stand up and protect them afterward when they come back. I just love hearing defense lawyers calling for people's prosecution. I love it. Because usually these guys are in the business of defending people from prosecution. Today they're yelling and screaming that everybody has to be prosecuted."