Epic Failure: The Usurping of Law & It’s Lack of Consequences
Torture. This single two-syllable word has the ability to conjure dozens of images and expressions: barbaric, pain, inhumane, Abu Ghraib, and, most importantly for the purposes of this paper, illegal. Torture and its techniques have been outlawed by both international and domestic law for dozens of years. And, as with all laws, this derives from the understanding that going outside the clearly defined borders of any legal framework would be cause for legal consequences; if this does not come to pass, a disturbing and dangerous precedent is set. This structure had been honored by all Presidential administrations since the domestic inception of these specific regulations up until 2002. With the creation of the so called “torture memos” created by the Office of Legal Counsel the United States began participating in woeful and deliberate techniques that have long been considered part of the unlawful torture umbrella. A rational expectation would be that the individuals who participated in this practice would be brought to justice. They did not. The Office of Professional Responsibility report, released two weeks ago, stated that there should be no criminal or professional charges of any kind leveled against those responsible. As such, the torture memos and the lack of culpability against those integral to their creation, are an epic failure of the underpinning of domestic and international law and the precedent of expected consequences. And as such, has the potential to set a dangerous standard both at home and abroad with the potential of unraveling generations of similarly structured edict.
Before 1975, there was no universally accepted definition of what constituted torture. In that year the United Nations Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) was created to address this weak point of International understanding. Along with defining this act it also created the momentum necessary to pressure participating countries into enfolding the new delineation into domestic legislation making anything outside of this purview criminal. As article 2 states:
- “Each State Party shall take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its Jurisdiction.”
- “No exceptional circumstances whatsoever, whether a state of war, or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”
- “An order from a Superior office or a public authority may not be invoked as a justification of torture.”
The UN Convention goes on to state that, “Each party shall ensure that all acts of torture are offenses under its criminal law.” (Article 4, #1). There is absolutely no room for misinterpretation or escape in this convention or its dictates of such treatment being criminalized natively.
This is a unique distinction in contrast to other international human rights statutes. As Professor Marks explained in his explanation of hard and soft law is emerging norms evidenced by resolutions, declarations, plans of action, practice etc. Hard law is established by treaties and customs with clear binding norms and rules. He went onto explain that most of regulation surrounding human rights fall under the former classification. (February 9 lecture). This was not meant to be seen as a flaw or liability necessarily, merely a statement of fact.
The understanding and encompassing of both facets within torture decree make it all the more solid in terms of a binding resolution. Within the Convention were statements that reinforced the soft law of, “Having regard to article 5 of the Universal Declaration of Human Rights and Article 7 of the International Convention in Civil and Political rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (UNCAT P.1). Those emerging norms were ever present in this document along with the clear cut right and wrong legalese.
Along with the eventual passage of the hard law in the United States, who participated in the UNCAT process, you have encompassing clear definitions of what is perceived to be torturous acts. The legislation narrowed the more broad all-encompassing view of the UNCAT to be sure, but it was still there and during the first Bush Administration, was signed into law. It was now a definitional crime against America as well as the world to engage in torture.
This entire sentiment came to an abrupt halt in 2002. With the leak of the now infamous “Yoo Memo” or “Torture Memo”; drafted by the lawyers for the Executive Branch housed in the Office of Legal Counsel, it attempted to negate all of the ideas in which the UN Convention and all associated soft law as well as the domestic criminal liability of what it meant to torture, writing;
“…we conclude that torture as defined in and prescribed by Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder. Additionally, such severe mental pain can arise only from the predicate acts listed in Section 2340… Even if an interrogation method might violate section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.”(P. 46).
The memo, written by John Yoo and signed by his boss Jay Bybee, did not even see it necessary to mention the UNCAT by name in its conclusions. They believed that the state descriptions (2340) were the only relevant matter to address. The only allusion to the broader agreements made by the U.S. is in the direct contradiction of ideas in the sentence arguing that interrogation “methods” which could possibly be described as torture could be considered justified by the need to do it; a complete and total smack in the teeth to all soft law that had deemed this exact position as unacceptable; a familiar theme runs throughout the document and is shrewdly summed up by the author later when he states, “… decisions by foreign or international bodies are in no way binding authority upon the United States.”(P. 27). According to this logic, the United States is exempt from all soft legislation it has ever agreed to simply because these two lawyers believe that the establishment of consequences are not there and as a result no compulsion to follow them is laid at the feet of the U.S. Government.
The memo went on to further obliterate the position of the domestic code by stating that any talk of this kind of restriction was in fact not feasible according to the bedrock of our democracy: the United States Constitution. Yoo writes, “…under the circumstances of the current war against al Qaeda and its allies, application of Section 2340A to interrogations undertaken pursuant to the President’s Commander-In-Chief powers may be unconstitutional.”(P.31). In other words in a state of war situation, even within the more narrowed definition it was not allowed to circumvent any Presidential powers the Commander deems necessary for combat.
According to this and subsequent memos recently declassified both hard and soft legislation from the International and Domestic arenas were not applicable to this situation. When in fact this type of situation was the exact reason such guidelines were considered essential. The outcry from the legal and scholarly communities was loud and intense. Not only were the grand suppositions in the memo attacked but the legal research, or lack thereof, was seen as sloppy at best, indictable at worst. Investigations were deemed necessary by people of all social and political standing. This included Congressmen Frank Wolf who contacted the Office of Professional Responsibility (OPR) concerned as the final report states, “…that the Bybee memo provided legal justification of cruel, inhumane, and degrading acts, including torture…and asks OPR to investigate the circumstances surrounding its drafting.” (P. 10).
This is where the ramifications for their actions were supposed to come in. By stating his position in this manner with this wording, Congressman Wolf was asking if the position of the Office of Legal Counsel was violating the very hard and soft law they deemed inapplicable. He was looking for a validation of this bedrock. The Office of Professional Responsibility was designed for just such watchdog actions with the ability to recommend sanctions, disbarment and criminal prosecution when the offense warrants it. This seemed like just such a situation; a textbook example of how the legal system worked.
The OPR, however, failed on all possible fronts. They did not recommend any such sanctions and as the New York Times stated that, “… the Justice Department concluded… the lawyers who gave legal justification to the Bush administration’s brutal interrogation tactics…used flawed legal reasoning but were not guilty of professional misconduct.” (Eric Lichtblau and Scott Shane P.1). The professional misconduct is the golden ring of culpability with the implications leading to possible prosecutions; it was not levied in the findings. The greatest ramification that can now come to Mr. Yoo and Mr. Bybee from this report is a note on their record, because the OPR is obligated to send their final analysis to the perspective states that hold the bar licenses of the two men. Neither is a practicing lawyer anymore. Yoo has tenure at the University of California, Berkley Law School and Bybee sits on the Federal Court and there is debate going on as to whether he would be forced to resign if this remote possibility came to pass. These are not consequences to be sure.
As you can see, this finding has the potential to set an explosive precedent here in the United States as well as in the International community at large. When there are Conventions, Treaties, and binding American law stating that there is in fact no way to become exempt from its declarations and then reasoning is developed stating you can in fact usurp just such an agreement, with no political, criminal, or social recourse, we are at risk of losing the belief necessary for all laws, rules, and regulations to work; consequences, actions need equal reactions. If this does not in fact continue to be the case and if things as essential to preserving humanitarian liberties as torture bans are seen as penetrable, we have a larger-than-life failure of all legal systems.
Works Cited
- Lichtblau, Eric and Shane, Scott. “Report Faults 2 Authors of Bush Terror Memos.” New York Times. February 19, 2010. http://www.nytimes.com/2010/02/20/us/politics/20justice.html?scp=1&sq=OPR&st=cse
- Marks, Stephen. “Critical Assessment of Traditional Classification of Human Rights: Civil and Political Rights, Governance, and Democracy in the Context of Development”. February 9, 2010 lecture.
- OPR Final Report. Office of Professional Responsibility. July 29, 2009. http://graphics8.nytimes.com/packages/pdf/politics/20100220JUSTICE/20100220JUSTICE-OPRFinalReport.pdf
- http://cm.dce.harvard.edu/2010/02/23364/L03/seg1/index_FlashSingleHighBandwidth.html
- UN. “United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.” http://www.hrweb.org/legal/cat.html
- Yoo/Bybee Memo. “Standards of conduct for interrogation under 18 U.S.C. SS 2340-2340A”. August 2, 2002. http://humanrightsfirst.net/us_law/etn/gonzales/memos_dir/memo_20020801_JD_%20Gonz_.pdf
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