Document 33-1: JOHN YOO, Memoranda Regarding U.S. Military Interrogations (2002, 2003)

Defining and Defending Torture

Following the attacks of September 11, 2001, the United States’ most visible responses were military action against and invasion of Afghanistan (2001) and Iraq (2003). Domestically, President George W. Bush’s administration moved to clarify the legal and political grounds for what was termed the war on terrorism, an effort that involved the detention and interrogation of both U.S. citizens and aliens. Deputy Assistant Attorney General of the United States John Yoo was asked by then-Counsel to the President Alberto R. Gonzalez, and later by General Counsel of the Department of Defense William J. Haynes II, to provide a legal opinion on the power of the president to interrogate prisoners and whether such interrogation was prosecutable as torture. His responses, excerpted here from fifty- and eighty-page letters, respectively, were widely understood to condone interrogation techniques such as water-boarding, adding to the controversy surrounding the U.S. response to the attacks of September 11.

Memorandum for Alberto R. Gonzales, Counsel to the President

August 1, 2002

Re: Standards of Conduct for Interrogation Under 18 U.S.C. 2340–2340A

You have asked for our Office’s views regarding the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340–2340A of title 18 of the United States Code.1 As we understand it, this question has arisen in the context of the conduct of interrogations outside of the United States. We conclude . . . that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture. . . .

We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute’s definition to track the Convention’s definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts. . . .

We conclude that the treaty’s text prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for “cruel, inhuman, or degrading treatment or punishment.” This confirms our view that the criminal statute penalizes only the most egregious conduct. . . .

We examine international decisions regarding the use of sensory deprivation techniques. These cases make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.

. . . We discuss whether Section 2340A may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President’s Commander-in-Chief powers. We find that in the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war.

Memorandum for William J. Haynes II, General Counsel of the Department of Defense

March 14, 2003

Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States

You have asked our Office to examine the legal standards governing military interrogations of alien unlawful combatants held outside the United States. . . .

We conclude that the Fifth and Eighth Amendments,2 as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad. . . . Federal criminal laws of general applicability do not apply to properly-authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution’s grant of the Commander in Chief power solely to the President. . . .

Given the ongoing threat of al Qaeda attacks, the capture and interrogation of al Qaeda operatives is imperative to our national security and defense. Because of the asymmetric nature of terrorist operations, information is perhaps the most critical weapon for defeating al Qaeda. Al Qaeda is not a nation-state, and has no single country or geographic area as its base of operations. It has no fixed, large-scale military or civilian infrastructure. It deploys personnel, material, and finances covertly and attacks without warning using unconventional weapons and methods. As the September 11, 2001 attacks and subsequent events demonstrate, it seeks to launch terror attacks against purely civilian targets within the United States, and seeks to acquire weapons of mass destruction for such attacks. Because of the secret nature of al Qaeda’s operations, obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States. Interrogation of captured al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it. Given the massive destruction and loss of life caused by the September 11 attacks, it is reasonable to believe that information gained from al Qaeda personnel could prevent attacks of a similar (if not greater) magnitude from occurring in the United States. . . .

One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members of the enemy. . . . It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength, and its plans. Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants during virtually every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. Recognizing this authority, Congress has never attempted to restrict or interfere with the President’s authority on this score. . . .

We conclude below that the Fifth Amendment Due Process Clause is inapplicable to the conduct of interrogations of alien enemy combatants held outside the United States for two independent reasons. First, the Fifth Amendment Due Process Clause does not apply to the President’s conduct of a war. Second, even if the Fifth Amendment applied to the conduct of war, the Fifth Amendment does not apply extraterritorially to aliens who have no connection to the United States. We address each of these reasons in turn. . . .

Under traditional practice as expressed in the customary laws of war, the treatment of unlawful belligerents is left to the sovereign’s discretion. . . . Under our Constitution, the sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief. In light of the long history of discretion given to each nation to determine its treatment of unlawful combatants, to construe these statutes to regulate the conduct of the United States toward such combatants would interfere with a well-established prerogative of the sovereign. While the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, . . . imposes restrictions on the interrogations of prisoners of war, it does not provide prisoner of war status to those who are unlawful combatants. . . . Those restrictions therefore would not apply to the interrogations of unlawful belligerents such as al Qaeda or Taliban members.

The second exception recognized by the Supreme Court arises where the application of general laws to a government official would create absurd results, such as effectively preventing the official from carrying out his duties. In Nardone, the Supreme Court pointed to “the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm” as examples of such absurd results. . . . For the reasons we explain above, the application of these general laws to the conduct of the military during the course of a war would create untenable results. . . .

In the context of interrogations, we believe that interrogation methods that do not involve physical contact will not support a charge of assault resulting in substantial injury or assault resulting in serious bodily injury or substantial bodily injury. Moreover, even minimal physical contact, such as poking, slapping, or shoving the detainee, is unlikely to produce the injury necessary to establish either one of these types of assault. . . .

[On Maiming]

Another criminal statute applicable in the special maritime and territorial jurisdiction is 18 U.S.C. § 114. Section 114 makes it a crime for an individual (1) “with the intent to torture (as defined in section 2340), maim, or disfigure” to (2) “cut, bite, or slit the nose, ear, or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person.” . . . It further prohibits individuals from “throw[ing] or pour[ing] upon another person any scalding water, corrosive acid, or caustic substance” with like intent. . . .

The offense requires the specific intent to torture, maim or disfigure. . . . Moreover, the defendant’s method of maiming must be one of the types the statute specifies — i.e., cutting, biting, slitting, cutting out, disabling, or putting out — and the injury must be to a body part the statute specifies — i.e., the nose, ear, lip, tongue, eye, or limb. . . . Similarly, the second set of acts applies to a very narrow band of conduct. It applies only to the throwing or pouring of some sort of scalding, corrosive, or caustic substance. . . .

Here, so long as the interrogation methods under contemplation do not involve the acts enumerated in section 114, the conduct of those interrogations will not fall within the purview of this statute. Because the statute requires specific intent, i.e., the intent to maim, disfigure or torture, the absence of such intent is a complete defense to a charge of maiming. . . .

[On Criminal Prohibitions Applicable to Conduct Occurring Outside the Jurisdiction of the United States]

There are two criminal prohibitions that apply to the conduct of U.S. persons outside the United States: the War Crimes Act, 18 U.S.C. § 2441, and the prohibition against torture, 18 U.S.C. §§ 2340–2340A. We conclude that the War Crimes Act does not apply to the interrogation of al Qaeda and Taliban detainees because, as illegal belligerents, they do not qualify for the legal protections under the Geneva or Hague Conventions that section 2441 enforces. In regard to section 2340, we conclude that the statute, by its terms, does not apply to interrogations conducted within the territorial United States or on permanent military bases outside the territory of the United States. Nonetheless, we identify the relevant substantive standards regarding the prohibition on torture should interrogations occur outside that jurisdictional limit. . . .

Section 2340A of Title 18 makes it a criminal offense for any person “outside the United States [to] commit or attempt to commit torture.” The statute defines “the United States” as “all areas under the jurisdiction of the United States including any of the places described in” 18 U.S.C. § 5, and 18 U.S.C.A. § 7. 18 U.S.C. § 2340(3). Therefore, to the extent that interrogations take place within the special maritime and territorial jurisdiction, such as at a U.S. military base in a foreign state, the interrogations are not subject to sections 2340–2340A. If, however, the interrogations take place outside the special maritime and territorial jurisdiction and are otherwise outside the United States, the torture statute applies. Thus, for example, interrogations conducted at GTMO3 would not be subject to this prohibition, but interrogations conducted at a non-U.S. base in Afghanistan would be subject to section 2340A. . . .

Thus, to establish the offense of torture, the prosecution must show that: (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering. . . .

To violate section 2340A, the statute requires that severe pain and suffering be inflicted with specific intent. . . . For a defendant to act with specific intent, he must expressly intend to achieve the forbidden act. . . .

Here, because section 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s precise objective. . . .

[In Summary]

Section 2340’s definition of torture must be read as a sum of these component parts. . . . Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. In addition, these acts must cause long-term mental harm. Indeed, this view of the criminal act of torture is consistent with the term’s common meaning. Torture is generally understood to involve “intense pain” or “excruciating pain,” or put another way, “extreme anguish of body or mind.” . . . In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts. . . .

As we have made clear in other opinions involving the war against al Qaeda, the Nation’s right to self-defense has been triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions. This national and international version of the right to self-defense could supplement and bolster the government defendant’s individual right.

Conclusion

For the foregoing reasons, we conclude that the Fifth and Eighth Amendments do not extend to alien enemy combatants held abroad. Moreover, we conclude that different canons of construction indicate that generally applicable criminal laws do not apply to the military interrogation of alien unlawful combatants held abroad. Were it otherwise, the application of these statutes to the interrogation of enemy combatants undertaken by military personnel would conflict with the President’s Commander-in-Chief power.

We further conclude that CAT4 defines U.S. international law obligations with respect to torture and other cruel, inhuman, or degrading treatment or punishment. The standard of conduct regarding torture is the same as that which is found in the torture statute, 18 U.S.C. §§ 2340–2340A. Moreover, the scope of U.S. obligations under CAT regarding cruel, inhuman, or degrading treatment or punishment is limited to conduct prohibited by the Eighth, Fifth and Fourteenth Amendments. Customary international law does not supply any additional standards.

Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability.

Please let us know if we can be of further assistance.

John C. Yoo

Deputy Assistant Attorney General

John Yoo, Deputy Assistant Attorney General of the United States, to Alberto R. Gonzales, Counsel to the President, August 1, 2002, Office of Legal Counsel, U.S. Department of Justice, Washington, D.C. John Yoo, Deputy Assistant Attorney General of the United States, to William J. Haynes II, General Counsel of the Department of Defense, March 14, 2003, Office of Legal Counsel, U.S. Department of Justice, Washington, D.C.

READING AND DISCUSSION QUESTIONS

  1. How do these memos define torture?
  2. What arguments does Yoo put forward concerning the power of the presidency?
  3. These memos provide a legal framework for interrogations conducted by representatives of the U.S. government according to U.S. law. How does Yoo address international law? Judging by these memos, how does the United States balance international and domestic concerns?