Waldron-Yoo Debate on Torture

This event was co-sponsored by the American Constitution Society, and the ACS president said that it would be streamed live and also archived online for viewing. We will post links to that if/ when available.

In the meantime, my best effort at transcribing the debate:

Prof. Debra Livingston gave the introduction and questions. Prof. John Yoo teaches at Berkeley School of law, clerked for Justice Thomas, and was deputy assistant attorney general in the Justice Department 2001-2003. Prof. Jeremy Waldron, University Professor at Columbia, wrote a critique of the Bush Administration's approach to law titled "Torture and positive law" that is to be published in the Columbia Law Review.

Livingston: Prof. Yoo, you have argued that enemy combatants in the war on terror operate outside the law and therefore are not under protection of the Geneva Conventions. What checks are there on U.S. power over such detainees at Gitmo?

Yoo: First, I would like to say that it is a welcome change to leave the People's Republic of Berkeley to come to Columbia. Waldron was one of the people who hired Yoo at Boalt, and Yoo clerked at the same time as Dean Schizer at the Supreme Court. "At Berkeley, we would never have such a structured debate; we would begin with the yelling."

To answer the question: Al Qaeda and its operatives are not entitled to POW status, because they are not a nation-state that has signed a treaty for reciprocal treatment, and AQ has never said it would follow the Geneva Convention. Everything they do is designed to violate the core principles of the laws of war, particularly the protection of civilians, primarily through non-targeting of civilians and distinguishing combatants from civilians. With 9/11, AQ operatives disguised themselves as civilians and targeted civilians.

What checks still exist, then? There's a number: the federal criminal laws, the military justice system, the legal checks within our own system to prevent any violation of domestic laws. Political checks; Congress could cut funding, impeach the president, de-fund Gitmo, etc. We have assumed that the checks have to be judicial, but that's not the system applied in wartime in the past. Do we think the courts would be a successful institution in monitoring the laws of war? Maybe the ultimate check is reciprocal treatment, which is how the laws of war have operated in the past.

Waldron: There are also the protections the Geneva Convention gives in Common Article 3, that people taking no active part in hostilities (including those who have laid down their arms) are entitled to certain minimal protections, including protection against torture. What the world's attention will be riveted on is America's placing itself outside the one framework set up to prevent barbarity. It's a matter of our honor, and how that translates into military culture that trains soldiers under Geneva. It's not just public relations; it's the viability of our alliances, the willingness of allies to hand over prisoners to us.

Livingston: While most if not all would agree that nothing approaching torture should be used in ordinary criminal law, doesn't the threat of war and terrorism necessitate harsher treatment?

Waldron: So we are not to approach the issue with the September 10 mentality. There are two ways to qualify or limit a right: to say that it is subordinated or traded off for national security; or you re-define it in wartime. It's being suggested that we use the second method. The first method is explicitly ruled out by international law; the restriction on torture is absolute, even in times of emergency. To sneakily mess with the definition seems to me a terrible mistake, and flies directly in the face of the absoluteness of the prohibition.
There is a danger of turning the word torture into a technical, legalistic term. If someone is being half drowned, and we say it is not torture, torture becomes a legal term like "certiorari." The ordinary soldiers understand that they benefit from a convention framed in ordinary language terms. When we lay down an absolute prohibition on torture in human rights instruments, we didn't do so as an academic exercise. We laid down this law specifically to constrain us in the circumstances where torture would be a temptation, not in peacetime academia. Apart from the disgraceful discussion in Yoo's memo, you undermine the legal and military culture by changing the meaning of torture. You can get yourself into a situation where Reservists and military police have heard that torture in the eyes of the law is not what torture normally understood is, and then we come to Abu Ghraib.

Yoo: The government captures Abu Zubaydah, a top person in AQ who would know the plans of attack on the U.S. He's been trained to resist standard interrogation. Jeremy didn't say what he would do to get information out of someone like that. The administration doesn't want to commit torture, but should we not consider things that fall short of that, things other democracies have done in the face of terrorist threat? The federal criminal statute prohibits torture abroad, but not cruel, unusual inhuman treatment. Some things in basic training, such as physical labor or letting someone sleep only 7 hours a day, would go beyond normal interrogation. In a traditional war, we may not need intelligence information from captures because we can survey troop movements, but when we're fighting a non-state actor, probably the only way to pre-emptively stop an attack is to gain intelligence from captured operatives.

Livinston: The Geneva Conventions act to civilize the behavior of the acting nation, not just to protect the detainee. Why should we abandon them wholesale simply because individual detainees may not be within the Conventions?

Yoo: I don't think that was the purpose. It was drawn up to regulate the kind of conflict we saw in World WarII. Article 3 applies to conflicts not of an international nature, such as civil wars and resistance fighters. It wasn't in the contemplation of people at that time that an organization like AQ could wield the power of violence of a nation state. So we're trying to figure out now what rules should apply to a non-nation state wielding the power of a nation state. In 1977, there was a protocol drawn up to amend the Gevena Convention, and the U.S. refused to ratify that treaty. President Reagan clearly articulated that it would give protected status to terrorists who would not obey the rules of warfare.

The Geneva Conventions apply in Iraq, they apply in Afghanistan. It's not that we dispense with it based on the nation, but rather based on the individual. Citizens of various countries are fighting on behalf of Al Qaeda, not their nations, and this causes them to have a non Gevena Convention status.

Waldron: With the protocol Reagan didn't sign, the issue was primarily POW status, not protected person status. Why did people think the treatment of prisoners needed to be rethought in 1949? One reason was because during World War II, one power claimed we were dealing with a new form of warfare; they said that considering the nature of the Soviet Union, being a collection of Bolsheviks rather than a real nation, the Gevena Convention didn't apply to them. Two powers, Germany and Japan, thought enemy pilots engaged in bombing civilian areas who were captured didn't have POW status but should be executed for the crime. We needed a comprehensive scheme to avoid arguments about categories of detainees. The U.S. headed the prosecution of lawyers who had tried to make patchworks. So I do not agree with John's vision of GC as a patchwork; it's not how the 1949 revision was envisioned or written.

Livingston: Will you engage a hypothetical?

Waldron: Of course.

Livingston: Let's assume a nuclear device is set to go off in an American city. Are we justified in using torture on 20 suspected terrorists to find out where it is before it kills thousands of people?

Waldron: It's a bad and corrupt question, but I said I would answer it and I will. The answer that law and morality and religion requires that in no circumstances is torture to be used. The law is unambiguous, it's a total prohibition. And for some of us, our morality dictates the same. We would take responsibility for the consequences of the bomb's explosion, for the consequences of our morality.

The question is corrupt for a number of reasons. It is designed to bring the opponent of torture down to the level of the defenders of torture for a single case. The question is corrupt factually; it supposes that torture is capable of getting accurate information. The war on terror is a war of information and intelligence. To think primarily in terms of TV scenarios of massively important pieces of information that we know are there is not realistic. The nature of the relationship between torturer and victim means that the victim will tell the torturer what the torturer thinks he wants to know.
Also, the question assumes that somehow we have the people who are trained to torture, yet who will do it only in this one case. There will be a cadre of torturers sitting around looking for work. There will be a culture of torture developed, changing the politics, training and discipline of the CIA and FBI. Everything we know about torture from the 20th century is that it grows out of control. We unleash everything depraved and sadistic in human affairs. We need to think about the trauma to the legal system, of having it be known that we have concocted room for torture. Everything that's had its reference on respect for human dignity begins to totter and crumble under this response of torture.

Yoo: All I can do is give you the practical choices the government faces. What is it that the government can do that goes beyond questioning; that might yield productive information? Al Qaeda is organized like a network, and there are some nodes far more important than others. The people the government captured who were involved in 9/11 planning are such nodes. We do know that they have such information in their heads.
It's a difficult argument to prove or disprove, whether Abu Ghraib officials were affected by the change in government culture. I could also say that I think the negative effect would be limited, but how do we prove or disprove it? It's an emotional, rhetorical argument. Do the reports from Abu Ghraib evidence it? I don't think they've shown anything like that.

Livingston: The Schlesinger report, written August 2004, concluded that there had been this valuable intelligence obtained at Gitmo, including Al Qaeda's efforts to obtain WMDs, potential travel routes to the U.S., etc. The majority of detainees had been treated appropriately. Well-documented policies and procedures are imperative to counter the chilling effect that abuses have had on gathering information. So isn't it a reasonable call for lawyers to say what is and isn't permissible in interrogations? And how would you go about this exercise?

Waldron: Certainly is it permissible for lawyers to scrutinize techniques for compliance with the law, and to list acceptable techniques. They also could list techniques likely to be used unless prohibited. You have to allow for the ingenuity used by people working under discipline. We have enormous detailed guidelines in military field manuals about honorable and lawful methods of interrogation. Much of the information gained at Gitmo has been gained that way. We are only now hearing the voices of people released from Gitmo, and it's unclear yet what the record will be on abuse and interrogation.

Audience Question: Prof. Yoo, you stated that Congress has chosen not to take an absolutist position on torture, because the statute applies only overseas and to extreme and unusual cruelty. Could Congress regulate torture, and to what extent does the executive have un-reviewable authority?

Yoo: Congress made a distinction between torture and things short of torture, and Congress criminalized only the former. As an academic matter, Congress cannot criminalize the legitimate exercise of the president's power. If the president ordered coercive interrogation, can Congress prohibit that? Congress cannot say that it's a crime for the president to use a nuclear weapon or send armies to Europe. In extreme circumstances, the commander in chief power does extend so far as to be unreviewable. But the administration is not ordering or authorizing torture so this has not arisen yet.

Question by Ex Post's T. More: You didn't engage Waldron's discussion of morality.

Yoo: I view the function of a lawyer not to interject my own moral views into what the government should do. So I had to answer whether the GC applies, a distinct question from what we should do as a matter of policy. Applying the GC to detainees isn't legally compelled. I don't think limits on presidential power are compelled by treaty. A lot of these arguments you and Waldron make, I don't disagree with them, but they should be considered separate from the legal analysis.

Waldron: I do think that with regard to some law, you can do a strict separation between the letter of the law and the moral spirit. But with human rights, international and much constitutional law, you cannot do that; you must understand the moral ideas that shape its content and give us our sense of its important. You need to understand the GC not as a strange set of runes, understanding it only by what the letter of the law requires. This is not to intersperse one's own religious views. Supra-positive aspect; you cannot understand them without their moral aspect.

Audience Question: What do you think is bad about torture?

Yoo: I don't believe the state should inflict severe physical and mental pain on people. I'm not here advocating that we ought to be torturing anybody. I've been trying to limit my argument to things that fall short of that, things that would not be severe physical and mental pain. Jeremy is not a consequentialist; he's the most well known legal philosopher today in the Kantian tradition. I think it would be very difficult to be a Kantian and have any responsibility in the government. People in the government have to be consequentialists, have to make trade-offs. If you're consequentialist, and you're talking about these things short of torture, you balance the losses of reputation against information that could stop attacks.

Audience Question: Both Waldron and Yoo oppose torture, and it has these negative effects on our international reputation, how do we stop it? International law hasn't prevented it, and it's still going on through extraordinary rendition etc.

Waldron: I'm not as pessimistic as you are about stopping torture. There's a lot of torture that the various conventions are ineffective in stopping, but we do what we can to shame and give the international human rights law some power. Drawing this line between torture and inhuman, degrading treatment, which the law does, to treat people cruelly and inhumanly, is to make a fetish of the word torture. We have shown the world that for our own self interests, we are willing to trade off. It does huge damage to being able to maintain international standards. That's what I'm most concerned about.

Yoo: We do have a system that is investigating and punishing instances of torture. Do countries' signatures lead them to lower levels of human rights abuses? We're been relying on a domestic law paradigm without an international enforcement mechanism. Maybe the answer is for countries to use their power to enforce the human rights law. But I would caution against reading the prohibition so broadly as to make the defense of the country impossible.

Livingston: I would like to thank our panelists, and this is a debate that will continue over the next several decades, I fear.