Architect of Torture

The Berkeley professor who gave a president a license to (all but) kill

The rush of attention on June 26, when the CIA released 700 pages of what it internally calls its "crown jewels" detailing lawless acts —many of them dangerously reckless crimes— committed from the 1950s through the 1970s, led General Michael Hayden, director of the CIA, to explain smoothly: "That was a very different era—a very different agency."

In the descriptions of assassination plots and the tight surveillance of journalists detailed in the papers, I found much that I had already written about during those years—such as the CIA's sprinkling of LSD in New York subways to test riders' reactions, and the suicide of a particular person of interest to the CIA, given LSD without his knowledge by the agency. But by and large, I agree with James Bamford, the expert on warrantless surveillance by the National Security Agency under Bush: "Looking back, it seems so minor compared to what the CIA is doing today."

Among the many examples of how the CIA today makes the agency detailed in the "crown jewels" documents look pallid by comparison is the system of torture created by the Bush administration in the treatment of suspected terrorists. Along with the Iraq War, the CIA's "renditions" and "black sites" greatly add to what Julianne Smith of the Center for Strategic and International Studies calls "the rather dark shadow [cast] on our relationship with our European allies," and much of the rest of the world.

In all the reporting I've done on this CIA strategy to secure our freedoms, the darkest and most chilling shadow that fell upon me was when Notre Dame professor Doug Cassel—an international human rights scholar—confirmed what he'd been told during a debate with John Yoo.

A University of California law professor, Yoo, as the 2002 deputy chief of the Justice Department's Office of Counsel, became the chief legal architect of the Bush administration's claim that the president has unlimited unilateral power to conduct the war on terrorists as he sees fit—including the infliction of torture by the CIA, operating with "special powers" from Bush.

In the December debate with Cassel, Yoo was asked: "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"

Yoo: "No treaty."

Cassel: "Also no law by Congress? That is what you wrote in the August 2002 memo [that went to the president]."

Yoo: "I think it depends on why the president thinks he needs to do that."

Also, in the Washington Post's often startling four-part series "Angler: The Cheney Vice Presidency" (June 2427), I learned that the infamous August 1, 2002, "torture memo" signed by the Justice Department's Jay Bybee—who has since been promoted to a seat on the Ninth Circuit Court of Appeals—was actually written by Yoo.

His pervasively influential opinion is the poisonous source of the atrocities at Abu Ghraib; all of our other interrogation centers; and—as revealed by prisoners no longer in the CIA's secret prisons—of the "waterboarding" and other tortures in those "dark sites."

This classified Yoo memorandum, long since leaked, states that U.S. law against torture "prohibits only the worst forms of cruel, inhuman and degrading treatment." But what are those "worst forms" of "coercive interrogation" that are prohibited? They're still working on that.

And ever since, there has been confusion among interrogators in our prisons holding suspected terrorists. As of this writing, for example, although the Military Commissions Act of 2006 empowers the president to interpret and apply the Geneva Conventions' ban on "humiliating and degrading treatment," the June 19 Washington Post reported that "the administration has been unable to agree on what constitutes humiliating and degrading treatment of detainees."

This is why, with no clear rules on interrogation, the dark shadow over America's battered image around the world continues to deepen.

But what about torture itself? In that August 2002 memo, Yoo exquisitely narrowed the definition to mean only the infliction of punishment "equivalent in intensity" to the pain of "organ failure or even death."

If the prisoner is still breathing, and still has his organs, keep getting him to talk! Left to the interrogator is a wide range of degrading cruelty.

What I didn't know until Washington Post reporters Barton Gellman and Jo Becker revealed this in the Cheney series was that on the same day, "Yoo signed off on a second secret opinion [that] approved as lawful a long list of interrogation techniques proposed by the CIA—including waterboarding, a form of near-drowning that the U.S. government has prosecuted as a war crime since at least 1901."

Lest you think Yoo and his superiors are entirely bereft of compassion, the opinion refused to sanction one technique requested by the CIA—threatening to bury a prisoner alive.

After writing many critical columns on Yoo, I finally met him when we were both on a panel convened by Princeton University's Woodrow Wilson School of Public and International Affairs in April 2005. The professor's only response to my emphasizing his key role in creating the imperial Bush presidency was: "I do enjoy reading Nat Hentoff on jazz."

Suddenly, rising from the audience, Anne-Marie Slaughter, dean of the Woodrow Wilson School, confronted Yoo: "What I heard you say was that the president could order torture without restraint from Congress. . . . That the president can order torture of prisoners of war in any way, any time, contravenes absolutely everything this country is supposed to stand for. . . . "

Yoo: "A lot of the arguments you make about America's standing in the world . . . those are all fine arguments, but those are not constitutional arguments. Those are arguments on how, as a society, we should exercise this constitutional power. . . . "

Slaughter: "If I hear you correctly, you are telling me that you would tell your client, the president of the United States, 'You may order pulling out somebody's fingernails. You may order having somebody's family member killed in front of them to extract information.'. . . Are you really saying that our Constitution allows a president to do that?"

Yoo: "Is there any provision that prevents him from doing that?"

George W. Bush, John Yoo's star pupil, continues to allow the CIA to operate its secret prisons, and has also not ended the CIA's "renditions" ? —kidnapping and sending terrorism suspects to countries known for torturing prisoners.

Before the end of his final term, will the president, at a gala White House ceremony, award John Yoo the Presidential Medal of Freedom—as he already has to former CIA director and torture authorizer George Tenet?

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