Journal of National Security Law & Policy

Neither the war on terror nor torture respects borders. A multinational effort is essential to achieve accountability. This article addresses two questions related to definitions and accountability. First, why is there a need for a consistent definition? One lesson from the Bush administration torture memos is the danger of differing definitions. This question is explored by comparing the U.S. approach with that of the International Criminal Tribunal for the former Yugoslavia (ICTY), and by examining other national laws and international bodies monitoring torture issues. The second question is: What are the current limitations on available remedies that impede consistent accountability for torture? The article examines criminal and civil options in the United States and in the international criminal tribunals as examples of what we have and what we lack.

The Justice Department’s Office of Professional Responsibility (OPR) excoriated the legal work done by John Yoo and Jay Bybee of the Office of Legal Counsel on the torture memos, but DOJ’s ultimate decision stopped short of referring Yoo and Bybee for professional discipline. Serious questions remain, particularly since the OPR was unable to obtain the testimony of many high-level officials who played critical roles in authorizing torture.

At the January 2009 Association of American Law Schools’ Section on National Security Law panel discussion, I and others urged the incoming Obama administration to make a clear and decisive break with the Bush administration’s national security policies.

After 9/11, two officials at the Central Intelligence Agency (CIA) made decisions that led to major news. In 2002, one CIA official asked the Justice Department’s Office of Legal Counsel (OLC) to clarify how aggressive CIA interrogators could be in questioning al Qaeda operatives held overseas. This request led to the August 2002 memorandum, later leaked, in which John Yoo argued that an interrogator crosses the line into torture only by inflicting pain on a par with organ failure. Yoo further suggested that interrogators would have many defenses, justifications, and excuses if they faced possible criminal charges. One commentator described the advice as that of a “mob lawyer to a mafia don on how to skirt the law and stay out of prison.” To cool the debate about torture, the Bush administration retracted the memorandum and replaced it with another.

Several years ago, I began work on a project that I fancied to be both hypothetical and academic. In the aftermath of September 11, a number of commentators, including one prominent member of the legal academy, advanced the proposition that interrogation by torture in pursuit of terrorists should be viewed as permissible under the United States Constitution when undertaken with procedural safeguards. In an article published in 2003, I argued that these commentators were legally sloppy and morally obtuse: no matter what procedures accompany it, interrogation by torture is both at odds with settled constitutional law as it is and profoundly inconsistent with the legal system as it should be.

The issues provoked by the topic of torture are the subject of ongoing debate, not least because new disclosures, sometimes with accompanying leaked government documents, seem to be published almost every day. The year 2004 almost literally ended with the December 30, 2004, publication by the Justice Department’s Office of Legal Counsel (OLC) of a brand new memorandum on the subject, designed to supplant the now notorious August 1, 2002, mem-orandum to White House Counsel Alberto Gonzales. The New Year began, not altogether coincidentally, with the consideration by the Senate Judiciary Committee of President Bush’s nomination of Gonzales to succeed John Ashcroft as the Attorney General of the United States. Not surprisingly, the issue of torture dominated the testimony.

My contribution to this symposium seeks to accomplish two things. First, I want to engage in a dialogue with Professors Levinson and Kreimer about the problems of defining torture and the law’s response to torture. My contentions are that, contrary to Professor Levinson’s suggestion, we should not seek to limit the category “torture,” and that, contrary to Professor Kreimer’s argument, law in fact fails to regulate torture. More precisely, I argue that law provides less of a constraint on torture, properly defined, than most people probably assume. Second, I want to use that dialogue as the launching point for a more open-ended exploration of torture and the more general problem of state violence. To that end, the last section of this essay considers with broad strokes some of the possible reasons for law’s failure to regulate torture adequately.

Discussions about torture often start with this hypothetical: Imagine that there is a terrorist in the middle of Manhattan who has planted a nuclear bomb set to go off within hours. You capture him and are faced with a moral dilemma. Do you torture him to get the information that will allow you to defuse the bomb, thereby saving the lives of millions of people? Or do you stand on principle and sacrifice multitudes?

The purpose of this piece is to shed some light on the way the intelligence community operates, to describe how legal rules shape some of its most sensitive work, and to offer a perspective on the way the Central Intelligence Agency (CIA or Agency) fits into the debate about interrogation and torture. The debate is not about, and indeed cannot be about, whether our government should conduct torture. The answer to that question is and must be, by law and standards of human decency, no. As recently as March 2005, CIA Director Porter Goss reiterated the Agency’s position that it is bound by the laws banning torture and that the Agency adheres to those laws. But at a level deeper than the denials and the blanket statements, there is a difficulty that cannot be avoided. That difficulty lies not in the abstract form of the question, but in the real, on-the-ground scenarios that develop where interrogations are taking place. What can an interrogator do? When can she use deception, discomfort, fear, fatigue, punishment, physical contact, and similar tactics?

In the fall of 2001, the Bush administration was looking for a place to imprison and interrogate alleged al Qaeda members away from the prying eyes of other countries and insulated from the supervision of United States courts. The Defense Department believed that the Naval Base at Guantánamo Bay, Cuba might work, so it asked the Justice Department’s Office of Legal Counsel (OLC) whether federal courts would entertain habeas corpus petitions filed by prisoners at Guantánamo, or whether they would dismiss such petitions as beyond their jurisdiction. On December 28, 2001, OLC responded with a thorough and balanced analysis of how the federal courts were likely to resolve the jurisdictional question. The memorandum prepared by OLC explained the arguments against such jurisdiction, but it also explored possible strengths in the opposing position. The memorandum predicted that federal courts would not exercise jurisdiction but explained the risk of a contrary ruling. Acting in reliance on this memorandum, the government started imprisoning and interrogating alleged al Qaeda members at Guantánamo the following month, cognizant of the risk that a federal court might find habeas jurisdiction.

Humberto Alvarez-Machain, a Mexican national, was kidnaped in Mexico and brought to the United States at the behest of U.S. Drug Enforcement Administration (DEA) agents for allegedly assisting in the torture and murder of a DEA agent in Mexico. He challenged the jurisdiction of U.S. courts to try him, arguing that his illegal seizure barred the trial. The Supreme Court rejected that contention, holding that “the power of a court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’” This writer was one of the few who supported the Supreme Court’s decision sustaining jurisdiction, arguing that it was consistent both with international law and with the Fourth Amendment.