CommentaryJURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says the recently released 2003 John Yoo memo on US military interrogation techniques opened up a path to torture and leaves a great number of persons potentially criminally liable for the acts that occurred pursuant to the memo, if only we break the "silence of the lambs" and speak out…
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A series of events over the past two weeks prompts me to write again in this space, breaking the silence of the lambs and inviting all of us to revisit together the “severe pain” analysis of the newly released March 14, 2003 Yoo memo.
I. Events prompting this comment
The first event that prompts this comment was on March 27, 2008, when I was informed of the decision of the Executive Committee of the American Society of International Law that a member-initiated draft proposed resolution on the United States and detainee treatment, waterboarding, and calling for criminal prosecution for torture and cruel, inhuman and degrading treatment was “inadmissible”. Thus, members were being deprived of the opportunity to discuss the draft proposal at the Annual Meeting starting this week. It is an untenable decision for reasons I have explained elsewhere, but its effect is to silence the draft proposal.
The second event was on March 30, 2008, when Murat Kurnaz, as a guest on 60 Minutes, recited the treatment he allegedly received at the hands of the U.S. military during his detention in Afghanistan and Guantanamo. He described having been hung from the ceiling in an aircraft hangar in Afghanistan for five days by his arms (checked by doctors every six hours to see if he could still stand it), being electrically shocked, and having his head put underwater and punched in the stomach to make him inhale water. He alleged being placed in cold and hot rooms at Guantanamo. All allegations were considered to be unsubstantiated by the U.S. military. Kurnaz’s complaints are met with silence.
The third event was on April 1, 2008, when a march 14, 2003 memo on the Military Interrogation of Alien Unlawful Combatants Held Outside the United States written by John Yoo to the General Counsel of the Department of Defense, was released. The memo has been discussed by others, but in short it is another torture memo.
The fourth event was on April 2, 2008, in response to a question over at opiniojuris.org I offered a comment on the “severe pain” analysis done by Yoo in his memo at pages 36-39 demonstrating, on its own terms, it was untenable. I had not seen this type of analysis done before and thought it would be a contribution to discussion. The response on the merits of the analysis was silence.
The fifth event was on April 3, 2008, when I received from “UNKNOWN” a text message with my name in it that was a death threat of the “we know where you live” and “we are watching you” kind. I felt that someone wanted me to be silent.
The sixth event was on April 4, 2008 when I was reminded of Martin Luther King, Jr.’s life. I remembered how he was silenced.
II. Fallout from the memo
On April 2, 2008, Marty Lederman argued that Yoo's March 2003 memo is "in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004."
In an Esquire interview published on April 3, 2008 Yoo stated, “The memo released yesterday does not apply to Iraq. It applied to interrogations of al Qaeda detained at Guantanamo Bay. I don’t [necessarily] agree that the methods did migrate to Iraq, because I don’t know for a fact that they did. The analysis of the memo released yesterday was not to apply to Iraq, and we made clear in other settings that the Geneva Conventions fully applied to the war in Iraq. There was no intention or desire that the memo released yesterday apply to Iraq.”
On April 4, 2008, it was stated that the Yoo memo was probably part of the reason why 22 of 24 criminal prosecutions referred by the CIA and Defense Department had been dropped. Denials of knowledge of the memo were issued by the then Attorney General, John D. Ashcroft, the then Deputy Attorney General Larry D. Thompson, and the then Chairman of the Joint Chiefs of Staff, Retired Air Force General Richard B. Myers. Lawyers for defendant Charles Graner convicted in the Abu Ghraib abuse scandal said the memo should have been released as part of the ordinary discovery process in those cases and they were going to submit it to Graner’s parole board in the next few weeks.
III. The hole in the “severe pain” analysis
The Yoo memo tries to set out what interrogators could do. For that to be done the memo had to define “severe pain” from the torture statute.
The relevant sections of the memo are around pages 36-39 and 40 where it is stated:
Section 2340 defines the act of torture as an: act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control….
The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572(1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances …: hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.
Congress's use of the phrase "severe pain" elsewhere in the U. S. Code can shed more light on its meaning. See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and, comfortably into the body of both previously and subsequently enacted law.). Significantly, the phrase "severe pain" appears in statutes defining an emergency medical condition for the purpose of p
roviding health benefits. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000). These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual … (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.
One weakness of the rules of statutory construction (or rules of interpretation) approach is that everyone knows (as said Justice Kennedy in 2006 at the Nabrit Lecture at Howard Law School) that one can always find a rule that works for what you want to do.
I could spend time trying to look for this or that rule and focus on said rule as an alternative to the Yoo approach. The essence of this approach is that my discussion here would become kind of a more sterile exercise of "ah yes there are many ways to do this" and we would proceed off to our next article. For example, one could try to look at the same statutory language under a cumulative approach and look at the variety of answers and say isn't that fascinating. One is left with a kind of bewilderment at the possibilities.
Sorry to speak plainly, but I think JURIST would want me to speak plainly. Maybe because I am too lazy or something, I simplified my life a bit by taking Yoo at his own words. I assume that he means the words he writes so I look at them.
IV. Taking Yoo at his own words
For example Yoo says the medical emergency standard is:
These statutes define an emergency condition as one "manifesting itself by ,'acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual …
(i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added).
This language is the same in the other statutes to which Yoo refers in that section of the text (See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000)).
Note that language and then note the next sentence which is on page 38:
They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function.
But none of the statutes Yoo cites treat the damage as that rising to the level of death, organ failure or the permanent impairment of a significant body function.
Yoo's language in the sentence above on its face appears to contemplate to me a definition that restricts "severe pain" to something more narrow than does the statute to which he has chosen to make reference – let alone any more capacious definition from another rule of construction.
The language of the statute he cites does not make reference to anything permanent – it focuses on seriousness. While it could certainly contemplate at the high end of its seriousness – quoting further – "physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."
It also can include lower level types of seriousness that he has decided to exclude. So while starting from the language of a statute, to which he refers pursuant to a rule of construction, what he is doing is putting his own gloss on that statute — giving his own hypernarrow definition of "severe pain". No statutory backup for that Yoo version.
In his own words, and I believe that he believes what he wrote, he is giving advice that "severe pain" (Yoo version) is not "severe pain" (statute version) – a nice sleight of hand it seems to me. As we can presume he specifically intended to write this memo, his words are done with the specific intent of narrowing the limit of what is prohibited.
The difficulty that Yoo faces is that a prosecutor might say that even on the basis he has taken (the statue to which he refers), the rule prohibits more types of actions than Yoo’s standard prohibits. Putting it another way, Yoo got it wrong and the consequence of his getting it wrong was that those who relied on his wrong analysis did acts that were severe pain (meaning torture). His pen flowed to torture.
And the prosecutor could argue that Yoo was not mistaken out of "misfeasance" but rather "malfeasance" in that Yoo was working overtime to come up with narrowed rationalizations that would "protect" those below when they did acts that were in fact torture: he had the specific intent required for conspiracy to torture for example.
The prosecutor could bring in someone who for example tortured Murat Kurnaz and ask him to tell what he had done and whether he had been instructed to do that and by who, etc. and up the chain until you find where the Yoo memo was made operational.
Working on Yoo's standard, the fact that they brought in a doctor every 6 hours to check if Murat Kurnaz was still in good enough shape to be hung up indicates to me that – even with the doctor saying the guy was OK – "a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual …".
That lay person might not consider the damage "permanent" (Yoo's word sleight of hand) but enough to meet the standard of the statute cited by Yoo.
It is Yoo who then takes the step to push even the statute he is citing to an interpretation that permits torture. That was his choice and I presume that he had the specific intent to write the analysis that he did. That conduct is his actus reus and from conduct one can intimate mens rea – though I expect that from the collection of his work there may be further evidence that corroborates the mens rea.
After all, Yoo states in his interview in Esquire:
The other thing I was quite conscious of was I didn’t want the opinion to be vague so that the people who actually have to carry these things out don’t have a clear line, because I think that would be very damaging and unfair to the people who are actually asked to do these things. The way I read what the department did two years later, was
they just made the line blurry again. And — you can have the dispute — you can say I don’t think the line you’ve drawn is in the right place. That’s fine. But I think its not fair to say, which I think they did, which I feel — people say its slapdash — I think it’s not right when they say “I don’t want to be very clear.” Because that’s just people protecting their own backs. So…
He had the specific intent to do what he did. And what he did was create a standard for “severe pain” out of whole cloth that was unsupported by the statute he cited.
V. Breaking the silence of the lambs
For those who relied on this Yoo standard (such as the Working Group at the Department of Defense who were required by the General Counsel to write their analysis based on the Yoo memo, or anyone else above or below Yoo who operationalized the Yoo memo) they would assert reasonable reliance on the Yoo analysis to seek to avoid criminal prosecution. However, from what I showed above, the Yoo analysis is untenable on its face. In addition, given that the exercise I just went through took me about five minutes of looking up the relevant statutes that Yoo cites, I must question whether any lawyer in this process or layperson with the reasonable sense to ask a lawyer to check the point could be seen as being reasonable in relying on a “severe pain” standard that is made up from thin air.
I would think a question might be asked as to where the Yoo-included-language came from since it is not in the statute that Yoo cites. I can speculate on where it might have come from (a Presidential finding?).
The key is that a jury confronted with this evidence would not consider the Yoo standard as reasonable and would not consider reliance on that standard as reasonable. That would appear to me to leave open a great number of persons as potentially criminally liable for the acts that occurred pursuant to this memo. Of course, the memo has been withdrawn, but all those persons in the chain of command in the relevant 2003 period who operationalized the Yoo standard should be contacting lawyers. Maybe that is the reason that so many potential persons of interest are denying any knowledge of the memo at this time. I cannot believe them. There has been too much of this obfuscation about detainee treatment.
Ah, if the ASIL would have put its considerable authority behind the idea of further investigation of these points that would have been nice, but, of course the resolution was “inadmissible.” Civil society wants silence. The military and civilian authority wants silence.
This reminds me of the Lions for Lambs comment. The recent movie Lions for Lambs takes its name from a comment made by a German officer during World War I, comparing British soldiers' bravery with the calculated criminality of their commanders. All that the elite appears to want is silence from the lions so that the lambs escape liability.
As I have said before, not good enough. To keep our honor clean, break the silence of the lambs. All we need is evidence, a prosecutor, a grand jury indictment, a trial, and a conviction. Bring light. Bring light.
Benjamin Davis is a professor at the University of Toledo College of Law
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