Sorting Out the Torture Memo Issues, Part I: The Devaluation of Non-Penal International Norms

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Editor’s Note: See herefor a post welcoming Professor Roth

While we continue to await the long-withheld report of the U.S. Justice Department’s Office of Professsional Responsibility (OPR) on the conduct embodied in the notorious Office of Legal Counsel (OLC) “torture memoranda,” W. Bradley Wendel sorts out some of the issues in the current issue (12:1) of Legal Ethics. In “The Torture Memos and the Demands of Legality” (earlier version available on SSRN), Wendel reviews five books on the subject, including one authored by protagonist John Yoo. The result is a balanced, but ultimately pointed, account that avoids the oversimplifications that have frequently marked both criticisms and defenses of the memos’ authors.

Though reciting the usual criticisms of some of the memos’ more extravagant claims, Wendel renders a distinctive analysis of the government lawyer’s duties. Wendel concedes “that there are many different virtues of government, of which legality is only one.” He moreover allows that Attorney General Robert Jackson’s 1940 rationalizations of the Destroyers for Bases Agreement were morally necessary even though legally dubious. At least, though, “Jackson’s opinions were cautious and hedged, acknowledged limits to the power asserted by the President, and were no broader than necessary for the task at hand.” John Yoo’s position, by contrast, “really does boil down to a failure to differentiate between policy advising and legal advising. … The rule of law has no independent normative significance for Yoo.”

There are several pertinent nuances here that are worthy of further exploration. I will address one set of these now, and deal with others in a subsequent post.

Among both critics and defenders of the memos, there has been a remarkable inattention to the memos’ treatment of breaches of international human rights and humanitarian law obligations as such, as opposed to international crimes specified by treaty and reflected in domestic implementing legislation. The distinction cuts both ways. On the one hand, while many of the actions taken by both lawyers and interrogators were indefensible as a matter of morality or policy, the number that may have crossed the line into domestic or international criminality is far smaller – indeed, I would contend, far smaller than is currently comfortable to assert in human-rights-friendly company. (I have covered some aspects of these issues here  and here, though my purpose had nothing to do with exonerating these principals.) On the other hand, the violations of non-penal international norms are an enormity, and properly beyond cavil.

The most notorious of the memos, dated August 1, 2002, bore the astounding title, “Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A.” That statute has nothing remotely to do with specifying “standards of conduct,” for interrogation or anything else. It specifies a crime so heinous that presumptively-immune foreign officials can be prosecuted in U.S. courts for such acts taking place anywhere in world, without any necessary connection to the territory, nationals, or interests of the United States. Acts far short of this threshold were at that time crimes under the War Crimes Act when committed by or against U.S. nationals in any conflict covered by Common Article 3 of the Geneva Conventions. But even more importantly, conduct found to fall short of a criminality threshold is not thereby established to be lawful, let alone within the scope of an official “standard of conduct.”

The memorandum’s direct (and fully intended) implication was that the “standards of conduct for interrogation” licensed cruel, inhuman, or degrading treatment in breach of U.S. obligations under Article 16 of the Torture Convention. Similarly, memoranda tendentiously asserting the inapplicability of Common Article 3, and thus the War Crimes Act, effectively ignored or disparaged applicable counterpart U.S. obligations under customary international humanitarian law.

Yet the question of how states ought to treat detainees ought never to be confused with the question of what detention practices are so egregious as to subject the captor to criminal liability, let alone so egregious as (in the case of universal jurisdiction crimes) to subject the captor, as an “enemy of the human race,” to the penal judgment of a foreign court that may be hostile to the captor’s cause. Whereas international penal standards must be read against the backdrop of a general principle that the scope of criminal liability be construed narrowly in the defendant’s favor, and a specific principle that derogations from immunity not be lightly inferred, state obligations under international instruments need to be read, in the famous words of Fitzmaurice, “so as to have the fullest value and effect consistent with their wording (so long as the meaning not be strained) and with other parts of the text.” Where state responsibility is concerned, interpretation and application of norms should consistently err on the side of detainee protection.

When the discourse becomes stuck on the many extra steps that are properly required for an attribution of individual penal responsibility – the very points on which the memos were fixated – the focus shifts away from the victims, their sufferings, and their entitlements to both apology and reparation, all of which are properly at the core of the human rights mission. Furthermore, the focus shifts away from systemic failures and collective responsibilities; the more we can pin the blame on the likes of Cheney, Addington, and Yoo, the more we can distract from the myriad ways in which the United States, as a national community, let this happen. A few examples include: the calculated refusal of the opposition to make detainee treatment an issue in the 2004 Presidential campaign; the Detainee Treatment Act of 2005, which paid lip service to decency while systematically disabling the necessary implementation mechanisms; and the Military Commissions Act of 2006, which not only overtly created space for humiliating and degrading (and, by any fair definition, cruel and inhuman) interrogation measures, but actually went so far as to incorporate the August 1, 2002 memo’s notorious “organ failure” standard as a threshold for penal liability.

If the memos’ neglect for the non-penal international norms could properly be attributed to a judgment of the norms’ inapplicability to these detentions (and their authors have offered some arguments along these lines), I would have no hesitation in alleging a failure of legal competence on this point. However, it is fairer to conclude, in keeping with the scant attention paid to this matter, that the breach of international legal obligation was considered irrelevant, on a theory that I call “reverse monism”: international law is “real law” when and to the extent that it is incorporated into domestic law, and otherwise simply a policy question.

It would seem that the memos’ authors did not feel a professional responsibility to remind decision makers that virtually every measure being considered, even if not a crime, would place the United States in breach of its obligations under non-self-executing treaties and customary international law. (Henry Kissinger is supposed to have once said, “The illegal we do immediately; the unconstitutional takes a little longer”; here, it seems, human rights law was violated with scarcely a thought.)

In no context are a state’s international legal obligations more imperative than with respect to the treatment of the most vulnerable individuals – such as aliens detained as enemies without protected status, in dark places, and despised by their captors. What is most lamentable about the memos is their failure to point out, as often as necessary to be sure that the point does not elude the client’s consciousness, that a violation of international law is a serious breach of legality, quite irrespective of whether it rises to the level of a universal jurisdiction crime.

But a sad fact of the American political culture is that policies violative of international law are not thereby regarded as “off the table.” Indeed, as John Kerry’s “no permission slips” affirmation in the 2004 Presidential campaign indicated, even the party of relative restraint regards it as politically untenable (and perhaps even morally irresponsible) to renounce the option of breaching international legal obligations in the service of national security. (President Obama recently stated, in regarded to the use of force against Iran, “I don’t take options off the table when it comes to U.S. security, period.”)

As Wendel succinctly puts it in his SSRN abstract, “the role of lawyers should be understood in connection with the value of legality — i.e., the distinction between government genuinely constrained by the law and government that aims at doing the right thing all-things-considered, and which regards the law as only a pragmatic constraint.” Yet as the Medellin decision recently highlighted (even more in the dicta than in the holding), international law has not achieved this constraining status in American legal consciousness.

Once again, with the memo writing as with all aspects of the detainee treatment debacle, the search for individual accountability will be flawed if it does not bring Americans face to face with their collective responsibilities. John Yoo has much for which to answer. So has the American political community as a whole.


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Kevin Jon Heller says

September 15, 2009


My thanks for the fascinating post -- I look forward to the sequels. I agree with nearly everything you have to say, but I would ask you to clarify your claim that "international penal standards must be read against the backdrop of a general principle that the scope of criminal liability be construed narrowly in the defendant’s favor." The principles to which I assume you refer -- favor rei and its evidentiary cousin, in dubio pro re -- deal with the proper interpretation of specific rules of criminal liability, not the scope of criminal liability itself. There is no reason that international law cannot criminalize an extremely wide range of conduct, as long as its liability rules satisfy the basic requirements of nullum crimen sine lege (specificity and non-retroactivity) and the judges that apply those rules do not extend them by analogy, favor the defendant when faced with equally-plausible conflicting interpretations of a particular rule (favor rei), and give the defendant the benefit of the doubt when drawing evidentiary inferences (in dubio pro re).

Do you agree?

Brad Roth says

September 15, 2009

Thanks much, Kevin. Yes, in speaking of narrow construction of the scope of criminal liability, I meant liability under existing norms; I agree that there is no inherent limit on what conduct international law may eventually criminalize.

Jamie Mayerfeld says

September 15, 2009


This is a nice post, but I wonder if you mischaracterize the position of the Bush DOJ lawyers somewhat. In other memos and in letters to Congress, they went to great length to argue that the Bush administration was in compliance with all US obligations under international human rights law, not just those subject to criminal sanctions. For example, Steve Bradbury wrote a lengthy memo that the United States was in compliance with Article 16 of the Torture Convention prohibiting cruel, inhuman, or degrading treatment or punishment. It is an absurd memo, to be sure, but he makes the point of arguing that the US is not inflicting cruel, inhuman, or degrading treatment.

Brad Roth says

September 16, 2009

I take your point, Jamie. As I note in the post, some arguments were made about consistency with international obligations, but largely perfunctory ones. Thus, John Yoo's brief August 1, 2002 letter on the Torture Convention neglected cruel, inhuman, and degrading treatment altogether, because (as Yoo once confirmed to me) of an unexpressed view about geographical inapplicability. That view was based on an interpretation of a U.S. reservation that the reservation's drafter (Abraham Sofaer) has rejected, and that I regard as beneath refutation. The first treatment that I can find of CIDT on the merits is Bradbury's memo of May 30, 2005, which (while maintaining the moribund inapplicability stance) makes arguments about the "shocks the conscience" threshold that you and I both regard as risible. Overall, I find it both more generous and more plausible to attribute this performance to disregard than to abject incompetence. Meanwhile, memos on the law of war (e.g., the January 9, 2002 Yoo-Delahunty memo, the January 22, 2003 Bybee memo, and the April 4, 2003 Working Group Report) stressed the Executive's authority to breach customary international law -- law that, not coincidentally, was not incorporated into the War Crimes Act.

Dapo Akande says

September 16, 2009


Thanks for a great post. I wonder if there isn't a difference between the failure to discuss (in the memos) international human rights law and the failure to discuss non-penal int. humanitarian law. As you note in your answer to Jamie, the failure to discuss human rights law is perhaps attributable to a long held US position that human rights treaties do not apply extraterritorially and perhaps a view, not clearly expressed, but always beneath the surface, that human rights law does not apply in time of armed conflict. So there its not so much a disregard of non-penal norms but just a view that these norms don't apply to the issue being discussed.