When torture isn't really torture

John Yoo, the author of the infamous August 1, 2002 "torture memo" that formed the legal basis for so-called "enhanced" interrogation techniques against high-level terrorist detainees, used a statute governing health benefits when he provided the White House with a legal opinion defining torture, according to a former Justice Department official.

Yoo's legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture. Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, therefore was not considered to be torture.

Jack Goldsmith, the former head of the Department of Justice's Office of Legal Counsel (OLC), said that Yoo, a former OLC attorney who now teaches at the University of California at Berkeley, arrived at that definition by relying on statute written in 2000 related to health benefits.

That statute defined an "emergency medical condition" that warranted certain health benefits as a condition "manifesting itself by acute symptoms of sufficient severity (including severe pain)" such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function, Goldsmith wrote in his book, The Terror Presidency.

The health benefits statute's use of "severe pain" had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define "severe pain". Rather it used the term "severe pain" as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like ... OLC’s clumsily definitional arbitrage didn't seem even in the ballpark.

In February, Senator Dick Durbin, (D-IL), wrote a letter to the Justice Department's inspector general and the agency's office of professional responsibility requesting an investigation into the department's authorisation of waterboarding, specifically, how Yoo and others in the OLC formed the legal basis for waterboarding and whether DOJ standards and policies were met when OLC reached it's conclusions on the technique.

Did Justice Department officials who advised the CIA that waterboarding is lawful perform legal work that meets applicable standards of professional responsibility and internal Justice Department policies and standards? For example, did these officials consider all relevant legal precedents, including those that appear to contradict directly their conclusion that waterboarding is lawful? stated Durbin's February 12 letter to DOJ Inspector General Glen Fine.

On Wednesday, February 13, the Senate narrowly passed legislation banning waterboarding as well as other brutal interrogation tactics used by the CIA. President Bush has vowed to veto the legislation (which he did on Saturday, March 8, 2008).

Goldsmith claims that after reviewing various arguments and opinions in Yoo's August 2002 "torture memo", particularly "any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-Chief authority in the president, has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law".

Goldsmith, who was tapped to head the OLC in October 2003, determined after eight weeks as head of OLC that Yoo's "torture memo" was "legally flawed", sloppily written, and called into question whether the White House was provided with sound legal advice. That conclusion, along with Yoo's reliance on a health benefits statute to form a legal opinion regarding torture, may factor into whether the DOJ's inspector general and office of professional responsibility decide to probe the matter.

"On an issue that demanded the greatest of care, OLC's analysis of the law of torture in the August 1, 2002, opinion and the March 2003 opinion was legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary," Goldsmith wrote in his book.

When he arrived at the OLC in October 2003, Goldsmith was unaware that the CIA had, for more than a year, used interrogation methods to extract information from so-called high-level detainees held at secret prisons in European countries that, before 9-11, would have most certainly been construed as violating the United Nations Convention Against Torture, a treaty signed by the US but one that Congress had made unenforceable in US courts.

Goldsmith, who had worked at the Pentagon's office of general counsel, may appear to be one of a handful of individuals who challenged the White House on matters of national security matters but he was still a strong supporter of many of the administration's policies. A law professor and scholar on international law who graduated from Oxford and Yale universities, Goldsmith held the view that international laws that prohibited human rights abuses should not be considered as binding by courts in the United States.

Goldsmith's interpretation of international laws, as well as his staunch conservative credentials, played a crucial role in his transition from the Pentagon's office of general counsel to director of the OLC at the Justice Department. Upon his arrival at the DOJ, Goldsmith inherited a stack of legal opinions, some written by Yoo, who he counts as a close friend.

Yoo's legal opinions virtually gave President Bush unilateral authority to launch preemptive military strikes against any regime suspected of having ties to terrorist groups, provided Bush with the power to begin a covert domestic surveillance program, and authorised the president to allow CIA agents to interrogate alleged terrorist detainees using brutal methods of interrogation as long as it didn't result in death or maiming of the prisoner.

White House officials, including Vice President Dick Cheney, and his legal counsel, David Addington, believed that Goldsmith would reauthorise Yoo's legal opinions after arriving at the DOJ so the wide-range of classified programs would continue without interruption. But eight weeks after he settled into his new job Goldsmith said, according to his book that he worried "about the possibility of excessive interrogation" being undertaken by CIA agents after reviewing some of the legal documents written by his predecessors.

Patrick Philbin, at the time a deputy at the OLC who had provided the White House with legal advice following Yoo's departure from the office, advised Goldsmith soon after he arrived at OLC that he was working to correct one such OLC opinion written by Yoo that he believed was "out there".

The legal opinion that so worried Philbin was Yoo's "Standards of Conduct for Interrogation", which formed the legal basis for the Bush administration's so-called "enhanced" interrogation program.

Another opinion written by Yoo on March 14, 2003, for Jim Haynes, Goldsmith's former boss at the Pentagon under the heading "Military Interrogation of Alien Unlawful Combatants Held Outside the United States", provided the Department of Defense, specifically former Secretary of Defense Donald Rumsfeld, with authority to use the same interrogation techniques against high-level prisoners held at Guantanamo Bay and other facilities maintained under the DOD's control. That opinion remains classified.

According to Goldsmith, "the primary legal issue in both opinions was the effect of a 1994 law that implemented a global treaty banning torture and that made it a crime, potentially punishable by death, to commit torture".

"Congress defined the prohibition on torture very narrowly to ban only the most extreme of acts and to preserve many loopholes," Goldsmith wrote in his book. "It did not criminalize" cruel, inhuman, and degrading treatment (something prohibited by international law) and did not even criminalise all acts of physical or mental pain or suffering, but rather only those acts "specifically intended" to cause "severe" physical pain or suffering or "prolonged mental harm".

Both of Yoo's opinions concluded that the laws governing torture violated President Bush's commander-in-chief powers under the Constitution because it prevented him "from gaining the intelligence he believes necessary to prevent attacks upon the United States".

Goldsmith said that even though, "ironically", Yoo relied on a health benefits statute to write his legal opinion, these and "other questionable statutory interpretations, taken alone, were not enough to cause me to withdraw and replace the interrogation opinions".

"OLC has a powerful tradition of adhering to its past opinions, even when a head of the office concludes they are wrong," he wrote in his book.

Still, Goldsmith "decided in December 2003 that opinions written nine and sixteen months earlier by my Bush administration predecessors must be withdrawn, corrected, and replaced," Goldsmith wrote in his book. "I reached this decision, and had begun to act on it, before I knew anything about interrogation abuses. I did so because the opinions' errors of statutory interpretation combined with many other elements to make them unusually worrisome."