John Yoo’s perspective (a study in self-exoneration)

John Yoo worked in the Office of Legal Counsel of the Justice Department from July 2001 through 2003. He was the chief author of several memos from the DoJ which authorized the CIA to use more aggressive interrogation techniques than those allowed by the Army Field Manual and legal police techniques within the United States. I have transcribed parts of his speech, and in fairness I quote full paragraphs of his responses. Partisan practices of ‘quoting out of context’ tend to discredit the critic, rather than the perpetrator of a crime or gross ethical violation. And Yoo needs to be discredited by his own words. My comments will be in italics.

141213_JohnYoo_CNN_Newsmakers

Interviewers:
Eric Lichtblau, New York Times
Dan Lamothe, Washington Post

LICHTBLAU: Professor, years from now you will be remembered as the lawyer who gave the Justice Department’s legal blessing to many of the tactics that are discussed for interrogations in this Report. For you, personally, is that a source of pride or a source of some regret?

YOO: Well I hope it’s not the only thing I am remembered for. But you know, who knows? You’re right; that’s probably the thing I’ll be remembered for.

Look , you know, I didn’t rush to to this. I didn’t volunteer for the Bush Administration to work on interrogations. I started in July [2001], before the 9/11 attacks. You go back—I was just thinking about this the other day—this was going to be a domestic policy Administration. Remember Condoleeza Rice saying ‘We won’t be having 82nd Airborne soldiers escorting kindergarteners to school in Bosnia.’ Well they just did that in Iraq and Afghanistan.

But on the other hand, I thought it was my job to do it. We had just been attacked; lost three thousand of our fellow citizens; huge damage to the United States from a foreign terrorist group. And this unprecedented question came to us. We have this guy, Abu Zubeida, who won’t cooperate, won’t answer questions. And we are really worried about attacks. This was just a few months after the 9/11 attacks. We still have holes in the ground; the Pentagon; where the World Trade Center was. There’s a huge demand for information, and this question comes to us: ‘Can we interrogate Abu Zubeida, going beyond the sort of normal rapport-building, relationship-building, oral questioning that we traditionally use?’

[Yoo calls the CIA’s question “unprecedented”. What, exactly, is unprecedented about a government agency seeking to use “aggressive techniques” to extract information? The question of torture was important enough in 1789 to be the subject of its own Amendment to the U.S. Constitution. This is the entire text of the Eighth Amendment to the U.S. Constitution (part of the Bill of Rights): “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” However, the theme that Yoo returns to, again and again, is that the period right after the 9/11 attacks was “extraordinary” and “exceptional”, thereby justifying exceptions to the U.S. Constitution and our signing of the Geneva Convention Against the Use of Torture.]

I wish that…I as a government official, and the nation as a whole, had never had to answer or consider these questions. But they were thrust on us. And there are some people, I have to say, who would probably rather not do it at all. But I thought it was my job; my duty, even though to me it’s a tragic question. You know it’s hard, either way you come out.

[What Yoo implies here is that people who disagree with him were unwilling to consider the question of whether we should torture Zubeida for more information. That is disingenuous. Many of us considered that question at the time, because it was an obvious question as soon as news emerged that the United States was apprehending individuals to gather information related to 9/11 and the subsequent attacks: the “anthrax letters”, the bombing in Bali, and the bombing in Madrid.]

[What Yoo therefore disregards is the fact that many other Americans DID consider the question of resorting to torture to try to avert another imminent terrorist attack. And we decided that we would be admitting ethical defeat if we let this terrorist strategy force us to abandon our commitments to the U.S. Constitution (5th and 8th Amendments), U.N. Conventions, and the Geneva Conventions.]

LICHTBLAU: Just to follow up on that: did you have any hesitation, as a lawyer, when you saw the specific techniques that the CIA was first proposing with Abu Zubeida? Waterboarding, sleep deprivation, extreme cold, et cetera et cetera…The U.S. is a signatory to the Convention Against Torture; the U.S. military is bound by certain guidelines. As a lawyer, how many times did you have to think about this before you signed on to this?

YOO: First Eric, I have to say—half-jokingly—you’ve asked me more questions than the Senate Intelligence Committee has asked me about it.

LICHTBLAU: I’m honored. That’s C-SPAN for you.

[Here, Yoo is referring to one of his primary criticisms of the Senate Report: they did no interviews. Yet the reasons they did no interviews are well-documented: since the DoJ under Eric Holder had begun a criminal investigation into the program in 2009, the CIA decided to protect its agents under the 5th Amendment from self-incrimination and therefore refused cooperation with the Senate Committee in the preparation of this report. In the end, no indictments emerged from the DoJ investigation, but it compromised the ability of the Senate to get testimony.]

YOO: As someone who was a scholar on national security law before the 9/11 attacks—and let me say that before the 9/11 attacks it was a small, small area of the law—there were not many people in it. Of course I had read about what Great Britain had done with its IRA terrorist problem. And most significantly, the Israelis, with their terrorism problems. There were even judicial opinions in Israel about these issues. I knew that democracies, with legal traditions like our own, had had to use tactics like this—not maybe the exact same ones, but similar ones—because of the same difficulty we had. We had a need for information in a timely and immediate way.

I think the thing that is hard is that we are all familiar—all of us on the show I’m sure—because..all Americans—we all know the law enforcement system: and your right to Miranda, your right to a jury trial and so on, at least because of Law & Order which is on TV every day somewhere in the world.

But the thing about these kind of interrogations is that we needed information right away. Whereas with law enforcement, you have the ability to wait. You don’t have the pressure of time. And so that’s the thing that was really striking to me. And so in that period that you were talking about, between when these questions first came up—which is, I think, was in March [2002]—and then when we eventually answered the question which was in August [2002]. We basically worked on this one issue all the time, around the clock, for all of those months. And even then I would be the first to admit I wish we had more time. I wish we had had more people, more time.

The one thing about this: Remember, go back to 9/11. Go back thirteen years, to the months right after the attacks. And we were still…I thought the government was…we had been knocked on the mat. And we were struggling to get back up. The President and the Congress were demanding that the CIA and the Justice Department go on the offensive. And so of course I wish we had even more time to think about it than I did. I’m not saying our memos were perfect but I think we did a pretty good job based on how much pressure there was, based on how much limited time there was to get the job done, because we needed to get information from him [Abu Zubeida] because we were worried about a second attack on the United States.

And the other thing, can I just day, is that we knew very little about al Qaeda at that time. I would say that we probably know more about North Korea than we knew about al Qaeda back then. And so we were really struggling to as much intelligence as possible.

[Yoo paints a picture of a nation in an utter state of panic. I remember that day, when I went back to work getting low-income housing built, and I discussed the attacks with a fellow Southerner. At the time we were estimating 15,000 killed, because we were unaware of the effectiveness of the evacuation of the World Trade Center towers. Even so, we both knew that Americans had experienced far worse, and we didn’t need to lose our heads over this. As my friend said: “Antietam. 63,000 dead.” Americans have been through much worse than 9/11. Ask any African-American or Native American. Ask any Japanese-American whose family was interned. To justify panic, these leaders would have to claim total amnesia about the brutal experiences that continue to shape the daily consciousness of most Americans today. Americans in general seem to have much tougher character than any of the Bush Administration officials, whom Yoo would categorically exonerate from any acts reflecting judgment compromised by panic.]

LAMOTHE: Mr. Yoo, thanks for your time. I think one of the things that have really stuck with people in this report is the way…the secrecy, really, that is involved. I know one thing that stuck out to me, is that there were numerous passages in which U.S. Military, or individuals in the U.S. Military, raised concerns about people disappearing…There is one passage about a U.S. Military lawyer appearing at on of the Black Sites in Afghanistan and really taking some exception to what he saw and pushing up his own chain of command that there was risk if the U.S. military were to have a closer tie to this program.

I understand the concerns, but, does I have to be so binary? As, either we do police-style interrogations, or we do these things that, as a human being, most of us take exception to?

[Notice: LaMothe says ‘most people think these interrogation techniques are objectionable.’ He does not say that ‘most people think these techniques are torture and an overt violation of domestic and international law. But through the rest of the interview, Yoo treats LaMothe as if LaMothe has presumed to make a general statement that ‘most people think this was torture’.]

YOO: Well first, I don’t know if I agree with the last part of your statement, ‘Would all human beings take exception to it.’ I’m sure we’re going to talk about that later.

The first question is, Why was this so secret? Part of the secrecy was, this was intended to be used by the CIA on a very limited number of high-ranking al Qaeda leaders who were thought to have actionable intelligence. If you look at the memos at the Justice Department, that’s the way they are written. That’s the way the CIA presented it to us.

The Report has all kinds of comments, or suggestions, that it [waterboarding] might have been used on more people. But you know, waterboarding, according to CIA directors, from multiple parties across multiple Administrations, was only approved for three al Qaeda leaders. And so that’s part of it. And that is part of what went into the legal opinions. We were very conscious that this was a very limited thing, because of the emergency of the attacks, and because of the demand for information.

[‘Was only approved for’ three high-ranking al Qaeda prisoners. But Yoo doesn’t get to the issue: maybe his intent with his memo was to approve it only for three people, and only to get intelligence to prevent imminent attacks. But there is thick evidence that waterboarding and other ‘enhanced’ techniques were used on far more prisoners, and into a period well after the immediate emergency mentality of 2001/2002.]

Now, I don’t deny some of the things you are saying are in the report. Again, I can’t tell how much of it is true, because of the way the report was done. Because there is no testimony and witnesses to give context or maybe to contradict what is being said in the report.

[Yoo implies that the Democrats did not try to include Republicans, or that they deliberately excluded Republicans and interviewees. That implication of malice on the part of the Democrats completely exonerates the Republicans who–according to John McCain–actively and persistently opposed the development of the report.]

But…I think what you are seeing is a lot of chaos. Again, in the months after 9/11—the CIA is not in the detention and interrogation business at that time. The President, the White House, Congress, the are unified, saying: ‘Stand up, go from zero miles an hour to 100 miles per hour, and get going on the offensive against these guys.’

[Perhaps Bush Administration officials were indeed panicked and unfit to carry out their duties in a competent manner. Such weakness of character reflects badly upon them, and perhaps can be explained by their lack of actual military experience (unlike Senators John Kerry and John McCain). What is even more disturbing is that senior Bush Administration officials remained panicked for an extended period of time, according to Yoo’s account. The CIA first began presenting questions to him at the DoJ in March 2002: fully six months after 9/11. Yoo and the DoJ team worked for five months on these memos, ending in August 2002, by his own account. At what point did they consider moving out of manic-mode? Did they ever shift to recognizing that the threat of terrorism against the United States would remain a real and permanent condition? Did they consider how to transition back from a ‘state of exception’ back to a condition in which standard police and military procedures should be reinstated?]

Dianne Feinstein and Jay Rockefeller, leading Democrats in the Intelligence Community, are out in public saying, ‘We are asking the CIA to do things we have never historically never done in our own defense, but we have to do them now.’ So the CIA…I think you are seeing a lot of organizational chaos. Which, I think, is not unexpected given what they had to do so quickly, so fast.

What I find so remarkable—and I think this is what the Feinstein report can’t quarrel with—is that for the last thirteen yeas, there has not been another major terrorist attack on the United States. I think that’s incredible. And if you asked terrorism experts back then—political leaders, presidents, former presidents, people in and out of the government—they would have been astounded if you had told them, ‘Al Qaeda will not succeed in launching a second attack in the United States in the next thirteen years.’

I think that’s an incredible result.
[In effect, Yoo declares that the end—preventing terrorist attacks within the United States—justifies the means of the CIA interrogation program. For someone who disagrees with the program, it is easy to identify self-exoneration of his narrative. However from his perspective this is not exoneration, exactly, but justification for making difficult decisions. He later declares his personal conviction that ‘enhanced interrogation’ actually did yield information that prevented subsequent al Qaeda attacks. Outside of his personal opinion, we should note that there is no evidence that these “enhanced” techniques actually yielded any critical intelligence. In fact there is considerable evidence that torture is worse than useless. As torture-survivor John McCain explained earlier in the week, the victim will tell their interrogator whatever they think the interrogator wants to hear, in order to stop further suffering. By definition, therefore, the method yields bad information. Even in the narrow view of the torturer who has no compassion for the prisoner, the problem is that unreliable information undermines security strategies.]

LICHBLAU: Professor, you’re cited by name in the Report multiple times, as you probably know…One of the earliest opinions that you wrote for the Justice Department, when you were at the office of Legal Counsel, said that these tactics that the CIA was about to start using were legal, because they were not intended to inflict severe emotional or physical harm. Now, looking back in hindsight, thirteen years later, it strikes many Americans that as if that’s exactly what many of these tactics were doing. Whether we are talking about waterboarding or walling or other tactics, they do seem to be intended to inflict severe emotional or physical harm.

How do you square those two? What you wrote then, saying ‘These are legal,’ with what we know now?

YOO: That’s a really good question. You’ve looked at the memos, I’ve gone back and looked at them. That’s one of the hardest legal questions in the memos because of the weird language that Congress used. If you go back and look at it, Congress said: You have to have the ‘specific intent’ to inflict severe physical pain and suffering or long-term mental pain and suffering. That’s a hard question. What does the Congress mean by ‘specific intent’? The Supreme Court has never been clear what that means.

[In effect, Yoo uses a ‘strict scrutiny’ defense to say that he, and the CIA officers who followed his directive, should only be considered guilty of ‘second-degree torture’ in a method analogous to judgments in murder cases. I’m okay with indicting him and the CIA interrogators for ‘second-degree torture.’]

That’s a higher standard than saying just the ‘intent to do something,’ what we call mens rea in the law. And it’s a difference that’s—one common-sense way to explain it—is that it is the difference between first-degree murder and second-degree murder. It’s the difference between cold-blooded, calculated murder, and what most people get convicted of in this country who commit homicides is more second-degree murder or even something like manslaughter. So this has come up with waterboarding. You saw that in the memos too. If you are…again, we approved waterboarding for very limited circumstances—if you do not think—and you look at all the evidence—and what you see is that waterboarding does not cause injury. It causes…it doesn’t cause long-term physical pain and suffering within the terms of the [Torture] Statute, then you are not violating that law. Because of that very high standard.

And so how do we try to figure this out? I mean this is a hard question.

Can I just point out that the [Torture] Statute—which you just accurately quoted—that’s about all that the Statue says. It doesn’t contain much more in the way of definitions. It doesn’t certainly contain any examples of what is prohibited and what is permitted. In fact—as I’m sure we all know—in 2005, Congress passed the Detainee Treatment Act, where it went ahead and and actually did start to draw clear lines. Which is, I think, something of an admission that the earlier law was unclear on this.

And so one important thing we did is we went out and we tried to find out: Had there ever been medical issues with our soldiers and officers who had undergone waterboarding? I will say: that we did this for waterboarding, and not for most of the other enhanced interrogation techniques which we felt fell well short of waterboarding. Like solitary confinement, or sleep-deprivation, for only allowing someone to sleep five hours, or six hours a day. That we didn’t do. We only did that with waterboarding, because we thought waterboarding was the only one that came close to the line that you just read out.

[Yoo makes no mention of the fact that in the substantial literature the United States has collected on torture, the evidence is pretty clear that these sorts of techniques do not yield reliable information. John McCain makes that point very clearly in his speech from earlier in the week.]

Now I don’t think …and this gets close to the question that you and…and everyone else has asked about, too, just now: Doesn’t this strike most Americans as being torture? Either the methods we approved, or what’s in the Report? I would say that’s a hard question to answer: what most people would think is torture. I think there are things we all agree would be, and all agree would not be. I think most Americans would say that solitary confinement for long periods of time is not torture. We use it quite often in our own domestic prisons. No courts have found that to be a violation of the torture statute. Clearly a lot of things that we would agree would be torture.

[Here we get to the intersection between the brutal and excessive domestic prison system in the United States and our geopolitics. Yoo lives in a state with one of the highest per-capita incarceration rates in the world. California is actually under a Supreme Court injunction for cruel and unusual punishment due to chronic overcrowding and poor medical care. So it is an odd thing that he cites domestic prison policies as ‘normal’ and ‘harmless’ maybe because ‘domestic’ sounds familiar, comfortable, and home-like.]

What’s going on here is that the CIA is asking a question about—and again, I wish we didn’t have to answer this, but I think we did—what things can we do which don’t cross the line, but are close? That’s a hard thing to do. I don’t know whether most Americans or most human beings think that a lot of these enhanced interrogation techniques would be torture.

If you look at the opinion polls that are out…I was looking at opinion polls this week. They show that Americans think that, roughly by two to one, think that these interrogation techniques are justified, to get information from terrorists. So I’m not sure I necessarily agree with what people suggest when they say ‘Oh, I know what the American people think.’ Or, ‘I know what most people think about this question.’

I think that’s actually one of the faults of the Feinstein Report is that it seems to—not in the bulk of the report, but in the Chairman’s introduction—Senator Feinstein seems quite clear that she knows exactly what torture is and isn’t, and that this is what happened. And that the CIA actually authorized torture. And I think, also mistakenly, she also claims that the CIA covered it up deliberately from Congress and the White House. And the Justice Department. I’m apparently one of the people who got lied to in the Report.

LICHTBLAU: Do you believe you were lied to? Do you believe the CIA misled you about what they intended to do and what they did do?

YOO: No. I mean, I looked very closely at that part of the report. What I see…you have two different interpretations. Apparently, according to the Report, there were some things that were not told to the Justice Department at that first round in August of 2002 and in the months before, about Abu Zubeida, what was being done, what they thought he knew, who he was.

I think the problem for the CIA, if they misled us and did misrepresent things, then the approval they got from the Justice Department for those interrogation methods is only good based on those facts. So if they were to try to misrepresent things that would be stupid on their part because they are going to be placing themselves at enormous legal risk. But I don’t think that’s what happened.

If you look at the Report fairly—looking at those facts, taking them at their fact value, not even questioning the biases I’m worried about—I don’t see an Agency that’s engaged in this conspiracy and cover up—to beat up and brutalize al Qaeda leaders for what appears to be no reason. That is what the Report seems to say: that they just did it for no reason.

I don’t think that’s true at all. What I see is a chaotic bureaucratic response. You’d got…CIA has got no infrastructure. They’ve go no facilities. They don’t have any expertise in doing this. And it’s been demanded of them by the White House, and Congress—basically everyone—to go on the offensive against al Qaeda. So I am not surprised to see a lot of miscommunications, lack of clarity, lack of direction back and forth between the CIA headquarters and the field offices. Personally, I was not in contact with the field offices. That would not be appropriate for me to talk to people on the ground. But I talked quite often with people in the CIA and the National Security Council, and the White House about this. I don’t think they lied to me. I think they were giving me the best facts that they had available at the time.

[Yoo’s Justice Department memos did not specify whether individual tactics—like sleep deprivation—might amount to torture if they were used for extended periods of time, or repeatedly over long periods of detention. Yoo’s Justice Department memos did not consider the long-term cumulative effects, either, because he was focused on anwering the CIA’s specific concern about getting intelligence out of only one person: Abu Zubeida—to prevent an imminent attack.]

YOO: At the time we were under such press of events and, again, the desire to get intelligence in that short period of time to stop a second attack—it goes to the other question, Eric—we just didn’t have time to get to everything we would have liked to, with as many resources, and the luxury of time to think about it more.

That’s the difference between hindsight that we are all enjoying now, after thirteen years of no attacks. We can sit and pick through everything we did and say, “Well we could have done this better, we should have thought more about that question.” But if you go back then, I think its remarkable that we were able to do what we did, and that we got the intelligence that we did, and I personally am convinced did allow is to stop several future pending plots.

[Here, Yoo explicitly contradicts John McCain and dismisses the substantial record on the ineffectveness of torture for extracting reliable intelligence. So although he does not raise the issue earlier regarding whether the CIA should have employed these techniques in the first place. But he does use the questionable assertion that ‘aggressive interrogation’ yielded critical intelligence as an ‘ends-justifies-the-means’ argument.]