The President’s right to order torture

Politicisation of the public service is a bit of a theme in the blogosphere – but this takes the cake. The New York Times reports that a 2002 memorandum prepared by a government lawyer concluded “that the president's power to use torture to extract information from suspected terrorists is almost unlimited”.

The author was Jay S. Bybee, then the head of Office of Legal Counsel to the Attorney General:

The Office of Legal Counsel "is informally called the attorney general's lawyer," said Douglas W. Kmiec, who ran the office in the administrations of President Reagan and the first President Bush. "We used to call it the conscience of the Justice Department."

The Bybee memo basically defines torture, under US federal law, very narrowly and requires intent to cause permanent disabling injury, major organ failure or death (along with actually inflicting such injuries) for the crime to be committed. The memo apparently does not consider the much wider Convention Against Torture (CAT) definition relevant, even as a guide to interpretation of the domestic law’s wording. (It is normally accepted that domestic law should be interpreted consistently with international law wherever possible, even where international law has no directly enforceable status in “internal” law.) Article I of the CAT defines torture as:

“…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession … when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

The memo went straight to White House Counsel Alberto R. Gonzales, who commissioned it, and it apparently (though it strains credulity) never reached President Bush or the Attorney General.

Gonzales is the lawyer whose view that the Geneva Conventions relating to prisoner of war status (GPW) do not apply to the conflict in Afghanistan or Guantanamo Bay detainees, in a clash of memos, prevailed over Colin Powell’s view that they should.

The second Gonzales GPW memo can be found here. One of its reasons for denying GPW status is that it substantially reduces the risk of prosecution under domestic law of any Bush administration official for the war crime of mistreating POWs.

Incidentally, the co-author of the Bybee torture memo was Professor Jonathon Yoo, now a lecturer international law at the University of California in Berkeley, and an advocate of pre-emptive self-defence in his writings for the American Journal of International Law.

The Clinton head of the Office of Legal Counsel had this to say:

"What's depressing about the memo is not that parts of it appear to be wrong," Mr. Dellinger said. "What's depressing is that it's such a one-sided advocacy document."

This is entirely true. In law there is always a counter-argument, it’s seldom a game of absolute truth. That said, part of the profession must be rigorous analysis of all arguments, an analysis which should not be guided by a view as to the desirable policy outcomes. Indeed, a lawyer who fails to assess all arguments in a balanced way and provides merely instrumentalist advice is arguably in breach of their professional obligations as they may not explain all legal risks properly to their client.

Rather depressingly, this whole affair though seems rather more symptomatic of a culture in western democracy where the “frank and fearless” advice of the public service has been replaced with pressure to simply tell politicians what they want to hear and nothing else.

As for Bybee? He’s apparently a mild and pleasant character in person, and was appointed as a Federal Judge sitting in Las Vegas.