If you’re the guy getting waterboarded or electrocuted, you are pretty sure it’s torture.  If you’re a Justice Department lawyer in the first years after 9/11, you are pretty sure it’s not.  That’s clear from an internal Justice Department memorandum providing legal justification for the use of torture against suspected terrorists reported on by the Washington Post and the New York Times.  And if you are the Justice Department lawyer — particularly one named John Yoo — it doesn’t really matter all that much whether it’s torture or not.  Torture, implies Yoo, is in the eyes of the beholder, and in any case if the national security justifies it, it’s justified. 

"Whether conduct is conscience-shocking turns in part on whether it is without any justification," he wrote in a 2003 memo that, for several years, guided U.S. interrogations of terrorism suspects and, some believe, contributed to the bizarre and shameful behavior of U.S. servicemembers and contractors at Abu Ghraib.  Yoo added that an interrogator using extreme interrogation techniques could "argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions."  Odder still, Yoo pointed to a "national and international version of the right to self-defense." 

Here are just a few reasons why Yoo’s reasoning doesn’t stack up. 

1.  The "justification" is always a matter of interpretation, which is why the torture should not be.  If you say that the threat of attack is reason for torture, then eventually you have to torture just about every terror suspect who might conceivably know something that would stop an eventual attack.

2.  Any physical mistreatment of a prisoner is shocking to the conscience.   That doesn’t mean that no violence can be used against terrorism suspects, but it means that treatment that leaves  long-term physical or emotional damage to the prisoner should be avoided both because it is hurtful to the prisoner and because it changes the interrogator and his or her country for the worse.  (for more on this subject, see The Washington Monthly’s excellent review of this issue, including opinions by Americans who have tortured terror suspects)

3.  The idea of a right to national self-defense is too broad to apply to the treatment of one terror suspect.  Unless we’re talking about Lex Luthor, this idea exalts the terrorists and insults the United States and its servicemembers.  Furthermore, Yoo’s phrase citing a "national and international version of the right to self-defense" has the embarrassing ring of an idea that just sounded good, so he left it in there. Even to a non-lawyer like myself, the legal reasoning here seems quite impoverished.

Supporters of the use of torture (there’s no way to say it any other way) often make the following argument:  "What if you knew that the individual in custody had information about a massive terrorist attack due to take place in the next 24 hours?"  Wouldn’t you then be justified in torturing him?  The answer is maybe you would.  But the inverse is also true:  if you know that the individual in custody doesn’t have information about a pending attack, then you shouldn’t torture him. 

But how can you know?  What if he does?  You can’t know.  So you have to torture him, and just to be safe, you have to torture everyone else.  Or at least, to be safe, you have to know everything you can about everyone in order to know if maybe, just maybe, they know something that could stave off an attack.  In somewhat simplified form, this is the rationale used by the Justice Department and the White House in the years immediately following 9/11.  This approach brought us the theory of the unitary executive, it brought us the massive surveillance campaign conducted with the cooperation of the nation’s telecoms, and it has brought us the widening net of surveillance we’ve talked about elsewhere.

Our national security policy has been in the hands of overeager, overconfident intellectuals ensconced in positions of alarming influence in Washington.  Yoo seems to have been pleasantly surprised to find himself with such power, if the light-headed tone of his legal opinions is any indication.  Given their tendency to avoid nuanced argument even in their areas of specialty, experts like Yoo don’t even seem to deserve that classification.  With Yoo, as with Gonzales, Wolfowitz, Feith, Rumsfeld and others, the way we treat others in the cause of liberty and democracy has descended to a very low common denominator.

Ned Hodgman

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