Torture needs a rationale to survive. Torture needs a justification. States that torture always find ways to justify torture as an act that is within the law. They use the law as the first weapon of torture. Before the drills are powered up, before the electricity is turned on, before the water is boiled, before the knives are sharpened, it is the lawyer who strikes the first and most lethal blow.
The Nazis were very good at codifying torture. They had brilliant but morally bankrupt lawyers craft legal arguments to justify their increasingly sadistic methods in order to get "information vital to the interests of the State". The world, however, was not impressed and saw evil for what it was – evil. In response to the crimes of the Nazis the United Nations adopted the Universal Declaration of Human Rights (UDHR) in 1948 to try to ensure that the barbarism of the Nazis would never be repeated again. The Preamble to the UDHR states in part:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, [...]
Noble as it was, the UDHR did not prevent States from engaging in horrific acts of torture. Recognizing the continued practice of torture, The United Nations, in 1984, adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This Convention was supposed to remove once and for all the scourge of torture from the arsenals of civilized nations.
The United Nations did not count on an enterprising young lawyer named John Yoo. In August 2002, while working at the Justice Department John Yoo authored what became known as the "Torture Memo". John Yoo also authored other fine works that any Police State or young Nazi would be proud of, but for today, I would like to focus on his loving treatment of torture. Yoo wrote this memo in response to then White Counsel Alberto Gonzales’ request for a legal justification of "enhanced interrogation techniques" the Bush Administration was learning to master. The Bush Administration needed a legal justification to torture and John Yoo was more than eager to provide one.
John Yoo is a fine and brilliant lawyer. He took to the task of justifying torture with gusto. However, he ran into one big problem. That problem was the UN Convention against Torture. On the face of it, the Convention’s language is pretty clear about what constitutes torture and what the obligations of each State that is a party to the Convention are. The Convention in Article I paragraph 1 defines torture:
For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Yoo argued that the United States defines torture differently than the United Nations and it said so when it ratified the Convention (under the first President Bush). He further argued that no State at the time objected to the US’s narrower definition of torture. Therefore, the US was not committing torture. Furthermore, he argued, even if the United States was committing torture, no international court had the authority to hold the United States in violation of the Convention. Nana nana boo boo! Yoo concluded his schoolboy argument:
Thus, we conclude that the Bush Administration’s understanding created a valid and effective reservation to the Torture Convention. Even if it were otherwise, there is no international court to review the conduct of the United States under the Convention. In an additional reservation, the United States refused to accept the jurisdiction of the ICJ (which, in any event, could only hear a case brought by another state, not by an individual) to adjudicate cases under the Convention. Although the Convention creates a Committee to monitor compliance, it can only conduct its studies and has no enforcement powers.
It is no small coincidence that Yoo was also the chief proponent of the Presidential Signing Statement in the Bush Administration. He argues that laws and conventions can be interpreted by the President in any way he chooses. So, the President never actually violates a law or a convention, he simply reinterprets it.
In his defense of his memo and Alberto Gonzales, John Yoo unabashedly defended the American definition of torture by blaming Congress:
The Senate and Congress’ decisions provided the basis for the Justice Department’s definition of torture:
"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.”
Besides, he argued, the United States did not accept the entire Convention; it only accepted the "torture" part (with modified definition) and not the "cruel, inhuman and degrading punishment" part:
Not only does the very text of the convention recognize the difference between cruel, inhuman and degrading treatment and torture, but the United States clearly chose to criminalize only torture.
I suppose it would not help to point out to Mr. Yoo that the Convention is "against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". The "other" in the Convention’s title and in its text would seem to most English speakers to clearly indicate that "torture" is a subset of "cruel, inhuman or degrading treatment or punishment" and not separate from "cruel, inhuman or degrading treatment or punishment". But who am I to quibble with such a fine lawyer?
Last month the United Nations Committee Against Torture strongly criticized the United States for clear violations of the Convention Against Torture. I am sure that does not bother Mr. Yoo. After all, as he has stated, so what? They can’t force the United States to stop torturing.
Behind the tortured legal arguments lies the mind of a monster. In December 2005, during a debate at Norte Dame University, John Yoo acknowledged that no treaty or law prevents the President from authorizing torture of a child, including "crushing the testicles" of the child. First the State decides to torture, and then it uses the law to justify the torture. Dr. Joseph Mengele would tear up with pride.
Torture at its most basic level is carried out by jackbooted thugs who inflict pain and humiliation upon a helpless human being. But the thugs are just instruments that carry out the policy. In that the actual torturers are like the electric drills or the electrodes used to inflict the pain. These thugs are the mindless foot soldiers of the State. The real criminals are the ones who rationalize torture, who give it breath, who give it life. They often do not see the violence and cruelty their policies and rationalizations unleash. They are far removed from the blood and the feces. They do not have to wash their hands of the stench of death or decay. They are the real perpetrators of torture. They are the ones who need to be stopped if torture is to be eradicated.
These poisonous minds, like John Yoo, have infected the body of the United States with their poisonous policy. For the United States to recover from this sickness of torture, it must hold these sinister minds accountable and reject their kind. These policies are unworthy of a nation that was once the beacon of human rights. Shame on us until we end the torture.