Torture Memo F.A.Q.s

1. What is torture?
  • According to Article 1 of the U.N. Convention Against Torture, it is:
“...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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, 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. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.”
  • Furthermore, Article 2 says:
    1. Each State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
    2. 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 of torture.
    3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

2. What is the Office of Legal Counsel (OLC)?
  • The OLC is an office of the U.S. Department of Justice tasked with providing authoritative legal advice (considered binding precedent) to the President and all the Executive Branch agencies. Newsweek called the OLC “the most important government office you’ve never heard of.” Daniel Klaidman et al., Palace Revolt, Newsweek, Feb. 6, 2006.  
  • During the Bush administration, OLC lawyers produced legal memoranda that attempted to justify the torture of detainees in the "War on Terror" as well as a number of other executive power abuses.

3. Who are we trying to hold accountable?

The Boalt Alliance to Abolish Torture is calling for accountability and investigation of those who participated in shaping legal arguments and drafting legal memoranda authorizing torture including:
  • David Addington - former Chief of Staff to the Vice President, former Counsel to the Vice President
  • Steven Bradbury - former acting Assistant Attorney General (OLC)
  • Jay Bybee - former Assistant Attorney General (OLC)
  • Robert Delahunty - former Special Counsel (OLC)
  • Douglas Feith, former Undersecretary of Defense
  • Alberto Gonzales - former Attorney General, former White House Counsel
  • William Haynes - former General Counsel for the Department of Defense
  • Daniel Levin - former acting Assistant Attorney General (OLC)
  • John Yoo - former Deputy Assistant Attorney General (OLC)

    4. Who is John Yoo?
    • John Yoo is a current Berkeley Law professor who was a lawyer in the Office of Legal Counsel during the Bush administration. In this capacity, he was the principal author of several memoranda that attempted to provide legal justification for the torture of military detainees, in contravention of the absolute prohibition on torture codified in both domestic and international law. 

    5. What did John Yoo say about torture?
    • Yoo’s March 14, 2003 memo developed a very restrictive definition of what constitutes torture by pulling from the completely unrelated definition of an emergency medical condition in the “Medicare + Choice” plan, 42 U.S.C. § 1395w-22, which regulates insurance benefits. Yoo stated: 
     "Although these statutes address a substantially different subject . . . , they are nonetheless helpful for understanding what constitutes severe physical pain. . . . [They] suggest that to constitute torture 'severe pain' must rise to a similarly high level -- the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."
    • In the same memo, Yoo concluded that no domestic or international laws applied to the conduct of “authorized military interrogations” of so-called “enemy combatants."
    • Following John Yoo’s January 9, 2002 memo, President Bush suspended the protections of the Geneva Conventions for military detainees, leading to the torture and abuse of detainees in Guantanamo Bay, Afghanistan, and Iraq. 
    • According to Yoo, not even the U.N. Convention Against Torture, 1465 U.N.T.S. 113, was relevant because he read “the U.S. obligation under CAT” to extend “only to conduct that is ‘cruel and unusual’ within the meaning of the Eighth Amendment or otherwise ‘shocks the conscience’ under the Due Process Clauses of the Fifth and Fourteenth Amendments” - after stating that no U.S. law, including these amendments, applied.
    • Yoo’s memos neglected to mention binding precedent that did not support his views, including the Supreme Court’s landmark case on presidential power in wartime, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579. Youngstown limited the power of the President to act without explicit Constitutional authority or Congressional approval. Ignoring this seminal case on presidential powers is akin to "advising a client on school desegregation law and ignoring Brown v. Board of Education." Stephen Gillers, The Torture Memo, The Nation, April 9, 2008. 
    • In another expanded reading of presidential powers, Yoo’s legal opinions led to the authorization and reauthorization of the president’s Surveillance Program, later held to violate U.S. citizens' constitutional rights through illegal warrantless surveillance.
    • The Justice Department has subsequently repudiated John Yoo’s memoranda regarding torture and instructed its attorneys not to rely on them, acknowledging their poor reasoning and untenable legal conclusions. 

    6. What did the Office of Professional Responsibility report say about the authors of the torture memos?

    Yoo and Bybee committed professional misconduct

    OPR Final Report released 02/19/2010:

    Investigation into the Office of Legal Counsel's Memoranda
    Concerning Issues Relating to the Central Intelligence Agency's Use of
    "Enhanced Interrogation Techniques" on Suspected Terrorists
    July 29, 2009

    (The final report and related documents are available here)

    Analysis of John Yoo's individual responsibility finding intentional professional misconduct (p. 251-254):

    p. 251–52

    p. 254

    p. 254

    Analysis of Jay Bybee's individual responsibility finding reckless professional misconduct (p. 255-257):

    p. 256

    p. 256–57

    p. 257

    7. Where can I learn more?