Saturday, March 17, 2007

John Yoo in the Montreal Gazette

The Montreal Gazette has an interesting interview with John Yoo, which has already drawn some incisive responses from Marty Lederman and Jonathan Adler. As Marty notes, among other things Yoo seems to confirm that the CIA does indeed use waterboarding. And as Jonathan notes, Yoo's overall defense of torture seems to depend in part on a highly contestable (but apparently entirely unexamined, by Yoo) assumption that death is always worse than torture. Both Marty's and Jonathan's posts are good reading.

I want to stress a separate point reflected in these two paragraphs:

Yoo's memo was leaked to the press in the summer of 2004, in the aftermath of the publication of pictures of U.S. soldiers torturing Iraqi detainees inside Abu Ghraib prison. Overnight, he became a celebrity - but for all the wrong reasons. He was held personally responsible for Abu Ghraib's horrors: The disgusting behaviour of U.S. service personnel was seen as the bottom of the slippery slope down which Yoo had started America's military sliding when he wrote the torture memo.

"That was totally absurd," he told me when we meet for lunch in a restaurant opposite his office at the Boalt School of Law in Berkeley, Calif. "Two bipartisan congressional reports and several military investigations showed that the Pentagon hadn't even read the memo. Disgraceful behaviour of the kind which took place at Abu Ghraib had nothing to do with interrogation policy. Similar things have happened in practically every war. What was different was that this time they had cameras on their cellphones to photograph it. ... But the idea that what went on in Abu Ghraib would never have happened without that memo is just silly."

I tend to agree that those who depict Yoo's OLC "torture memo" as the but-for and proximate cause of the events at Abu Ghraib are likely overstating things. It's possible, I suppose, that we might ultimately be able to find evidence establishing that sort of causal link, but I don't see it now and I doubt we ever will.

I'm not sure that's the point, though. For me, the point is that if one adheres to the reasoning in the torture memo, it's not at all clear that conduct of the sort that took place at Abu Ghraib is always forbidden. The author of the Gazette piece seemed to get this. As he described, "The disgusting behaviour of U.S. service personnel [at Abu Ghraib] was seen as the bottom of the slippery slope down which Yoo had started America's military sliding when he wrote the torture memo." To put the point more directly, whether or not stuff like Abu Ghraib happens in every war, Yoo's memo makes it harder to condemn.

Yoo calls the actions at Abu Ghraib "[d]isgraceful behaviour," but the logic of the torture memo and of his statements in the interview is that such actions are perfectly permissible if undertaken against an alleged unlawful enemy combatant as part of a program of, ahem, "aggressive" interrogation. And that's the problem: under the logic of the Yoo memo, we lose the ability to say that the "disgraceful" treatment at Abu Ghraib was categorically and in all instances wrong.