Calling torture by its rightful name

As a Justice Department aide in January 2002, John Yoo wrote a legal brief arguing that fighters captured by U.S. troops in Afghanistan were not covered by the Geneva conventions.

Woo is now a Professor of Law at Boalt Law School. He recently engaged in a debate at Columbia Law School with Columbia University Professor Jeremy Waldron. Topic of discussion was the use of torture by the Bush administration and legal covers for doing so. Yoo was perfectly comfortable with his original advice and moreover suggested that it wasn’t the job of a lawyer to inject morality into the debate:

“In [writing] the legal memos, what’s the function of a lawyer? I view the function of a lawyer in those cases as to interpret the Geneva Conventions or the torture statute and not to interject my own moral views into what the government should do. . . [The moral arguments] are the kinds of things that ought to be considered in an analysis that’s separate from the legal analysis.”

Waldren disagreed.

“I think with regard to some law, you can do the strict separation between the letter of the law and the moral spirit that Professor Yoo has indicated. [W]ith regard to much human rights law, and much international law, and much constitutional law, sometimes you cannot do that; you cannot understand the human rights provisions without understanding – at least in some sense – the moral ideas that inform it, imbue it, give it its coherence, shape its concepts, give us our sense of its importance. I believe that’s true of human rights provisions prohibiting torture. I believe it’s true also of the scheme of protection laid down in the Geneva Conventions. You need to understand this not as a strange set of runes which we will look at as if we’ve never seen them before, and have no idea what they’re trying to do, but [will] try to figure out what the text requires. In some sense, that’s obtuse lawyering, as well as obtuse morally.”

Waldren’s essential message was one of duplicity and hypocrisy. How can America expect other countries to follow international law and norms, when its own government so openly flaunts the rulebook? Legal blog Ex Post explains a defence of Waldren (“…the positive law absolutely forbids torture, period”) and dismisses the “nuclear scenario” posed to him, namely that if the US government had, say, an al-Qaeda operative who allegedly knew of a nuclear attack, torture would be a legitimate form of interrogation in a post 9/11 world.

Ex-Post: “The unreality of that hypothetical, to reiterate, is this: Al Qaeda, in the real world, does not trust its operatives enough to let any one of them know the details of its operations. Neither, for that matter, did/does the IRA in Ireland. Terrorists, no strangers to torture themselves, prepare to avert its risks. Further, our intelligence gathering against Al Qaeda occurs over years, not in discrete, crucial moments, conveniently and identifiably proximate to the tragedy being plotted. How many people are too many to torture, over how much time, and with what variability of certainty as to their knowledge of what might be transpiring?”

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