by John Yoo
70. Although Justice O'Connor's opinion drew only a plurality of the Court, Justice Thomas's dissent agreed with the plurality on these essential points.
71. Hamdi, 542 U.S. at 533.
72. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
73. Hamdi, 542 U.S. at 533.
74. Hamdi, 542 U.S. at 531.
75. Id.
76. See Press Release, Statement of Mark Corallo, Director of Public Affairs, Regarding Yaser Hamdi (Sept. 22, 2004) (available at http://www.usdoj.gov/opa/pr/2004/September/04_opa_640.htm)
77. 542 U.S. 466, 481 (2004).
78. See id. at 478-79 ("[B]ecause 'the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,' a district court acts 'within [its] respective jurisdiction' within the meaning of SS 2241 as long as 'the custodian can be reached by service of process'") (alteration in original) (internal citations omitted). This passage of the Court's opinion will surely be offered as evidence that judicial review for U.S.-held detainees knows no bounds.
79. Hamdi, 542 U.S. at 538 ("There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal...[M]ilitary regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention").
80. The only case that came close, that of General Yamashita in World War II, made it to the Supreme Court only because his military trial was held in the Philippines, at that time an American possession. Ex Parte Yamashita, 327 U.S. 1 (1946).
81. For a more detailed analysis of judicial shortcomings in national security, see John Yoo, "Courts at War," 91 Cornell L. Rev. 573 (2006); Julian Ku & John Yoo, "Foreign Competence: Formalism, Functionalism, and the Alien Tort Statute," 2004 S. Ct. Rev. 153 (2005).
82. The Detainee Treatment Act of 2005 states that "no court, justice, or judge shall have jurisdiction to hear or consider" either "an application for a writ of habeas corpus filed by or on behalf of an alien" detained by the Defense Department at Guantanamo Bay, or "any other action against the United States or its agents relating to any aspect of the detention." Pub. L. No. 109-148, 119 Stat. 2739. The Detainee Act also contains the McCain Amendment, which prohibits the cruel, inhumane, or degrading treatment of enemy detainees. I address the important constitutional and legal issues surrounding the McCain Amendment in the next chapter.
83. See http://www.law.yale.edu/outside/html/Public_Affairs/675/profsltr.pdf.84. Congress's actions paralleled Ex Parte McCardle, in which the Court upheld an amendment to the federal habeas statute to prevent the Supreme Court from exercising jurisdiction over the claim of a military detainee in the Reconstruction South. 74 U.S. (7 Wall.) 506 (1869). If anything the Detainee Act is further within constitutional bounds than that act. In McCardle, Congress amended a habeas statute it had passed just one year earlier, in order to prevent the Supreme Court from addressing the constitutionality of Reconstruction. If the academic critics were correct that the act was unconstitutional, then expansion of the habeas jurisdiction by judicial interpretation would operate as a one-way ratchet--every time the courts expanded habeas jurisdiction, Article III would prevent Congress from reversing the decision. By this logic, changes to habeas procedure under the Anti-Terrorism and Effective Death Penalty Act of 1996, which sought to eliminate multiple and successive habeas petitions by the same convicted criminal, also would have violated the Constitution. 28 U.S.C.A. SS 2244 (a), (b).
Chapter 7
1. Information from Abu Zubaydah comes from Michael Gordon, "New Confidence U.S. Has al Qaeda Leader," N.Y. Times, Apr. 1, 2002; Karl Vick & Kamran Khan, "Raid Netted Top Operative of al Qaeda," Wash. Post, Apr. 2, 2002; Walter Pincus, "Seized Materials May Help Thwart Future Attacks," Wash. Post, Apr. 3, 2002.
2. Karl Vick, "The Terrorists Next Door: Al Qaeda Suspects Posed as Traders Before Capture in Pakistan," Wash. Post, Apr. 4, 2002.
3. Walter Pincus, "Al Qaeda Suspect Said to Be Talking to Interrogators," Wash. Post, Apr. 13, 2002.
4. Al Qaeda Training Manual, http://www.au.af.mil/au/awc/awcgate/terrorism/alqaida_manual.
5. 9/11 Commission Report, 161.
6. Id. at 145.
7. Most of the details of the formation and execution of the 9/11 attacks are directly attributed in the Commission Report's text and footnotes to their interrogations. See the note on Detainee Interrogation Reports, 9/11 Commission Report, supra note 6, at 146.
8. Kamran Khan and Susan Schmidt, "Arrest of Comrade Led to Mohammed's Capture," Wash. Post, Mar. 3, 2003.
9. Remarks of Deputy Attorney General James Comey Concerning Jose Padilla, June 1, 2004, www.usdoj.gov/dag/speech/dag6104.htm.
10. R. Jeffrey Smith & Josh White, "Cheney Plan Exempts CIA From Bill Barring Abuse of Detainees," Wash. Post, Oct. 25, 2005.
11. See, e.g., Seymour Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib (2004); John Barry, et al., "The Roots of Torture," Newsweek, May 24, 2004, at 26.
12. Dana Milbank, "In Cheney's Shadow," Wash. Post, Oct. 11, 2004.
13. Evan Thomas & Michael Hirsh, "The Debate Over Torture," Newsweek, Nov. 21, 2005, at 26.
14. Neil Lewis, "Red Cross Finds Detainee Abuse in Guantanamo," N.Y. Times, Nov. 30, 2004.
15. United Nations Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and Recommendations of the Committee Against Torture, United States of America, CAT/C/USA/CO/2 (May 18, 2006) (Advanced Unedited Version), at http://www.ohchr.org/english/bodies/cat/docs/AdvanceVersions/CAT.C.USA.CO.2.pdf; see also Colum Lynch, "Military Prison's Closure is Urged," Wash. Post, May 20, 2006.
16. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (hereinafter "CAT").
17. Id. at art 16.
18. President Reagan understood the treaty this way when he first sent it to the Senate: "The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering." S. Treaty Doc. No. 100-20, at 4-5. The Reagan administration listed acts of torture that were encompassed in the August 2002 memo: The definition of torture "is usually reserved for extreme deliberate and unusually cruel practices, for example, sustained systematic beatings, application of electric currents to sensitive parts of the body, and tying up and hanging in positions that cause extreme pain." S. Exec. Rep. No. 101-30, at 14 (1990).
19. S. Treaty Doc. No. 100-20, supra note 18, at 4. The first Bush administration eventually submitted to the Senate a more extensive definition of severe physical and mental pain that became the 1994 criminal statute. OLC's second memo tried to argue, weakly, that the phrase "severe" in reference to physical pain was an effort to expand the definition of torture beyond the Reagan administration's definition. But there is no real reason to think the Reagan and Bush administrations had different definitions of torture, and executive branch officials at the time said as much to the Senate. The 2004 OLC opinion quotes a comment from the Senate report on the CAT as saying that the Reagan administration definition had been criticized "for setting too high a threshold of pain." The 2002 opinion addressed this statement by pointing to the testimony of State and Justice Department officials before the Senate that there was no difference between the Reagan and Bush understandings of the treaty, but rather that the Bush administration sought to make the Reagan understanding more specific. Convention on Torture: Hearing Before the Senate Comm. on Foreign Relations, 101st Cong. 10 (1990) (statement of Abraham Sofaer, legal advisor, Department of State); id. at 13-14 (statement of Mark Richard, deputy Assistant attorney general, Criminal Division, Departme
nt of Justice). In the face of these statements, the 2004 OLC opinion concludes that the Bush administration had a lower standard for torture than Reagan because "the common usage of 'excruciating and agonizing' pain is understood to be more intense than 'severe' pain," without any citation to authority. Memorandum for the Deputy Attorney General, Legal Standards Applicable Under 18 U.S.C. SSSS 2340-2340A, Dec. 30, 2004 (hereinafter December 2004 OLC Opinion).
20. 18 U.S.C. SSSS 2340(1). As the Senate attached this language to its advice and consent to the CAT in 1994, and the Clinton administration attached it to its document ratifying the treaty, it also defines the United States' international legal obligations under the treaty. S. Exec. Rep. No. 101-30, at 36(1990); 1830 U.N.T.S. 320 (Oct. 21, 1994).
21. The difference between specific and general intent is a difficult one to understand, and it has been only imperfectly explained by the Supreme Court. Cf. U.S. v. Ratzlaf, 510 U.S. 135, 141 (1994); United States v. Carter. 530 U.S. 255, 269 (2000); United States v. Bailey, 444 U.S. 394, 405 (1980).
22. Even OLC in its second opinion made this error. See OLC December 2004 Opinion ("We do not believe it is useful to try to define the precise meaning of 'specific intent' in section 2340"). It refused because, in light of the President's policy prohibiting torture, "it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct what might otherwise amount to torture."
23. See, e.g., Webster's New International Dictionary 2295 (2d ed. 1935); American Heritage Dictionary of the English Language 1653 (3d. ed. 1992); IX The Oxford English Dictionary 572 (1978).
24. Memorandum for Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct in Interrogation under 18 U.S.C. SSSS 2340-2340A, Aug. 1, 2002, at 6, (hereinafter OLC August 2002 memo).
25. 42 U.S.C. SS 1395w-22(d)(3)(B).
26. Congress here had adopted an understanding of the CAT recommended by the Bush administration. The Reagan administration had not submitted an extensive definition of mental pain and suffering.
27. Bush administration critics like Georgetown law professor David Cole claim that reading the statute to prohibit only threats of imminent death, rather than any threats of death, shows that the Justice Department was bending the law to allow torture. His approach would have a lawyer ignore Congress's deliberate choice of the word "immediate" and ban any interrogator from ever referring to death as a possibility, because he prefers that on moral or policy grounds. A lawyer's job, however, is to interpret the words Congress chose, and not to elevate himself into the role of an elected official.
28. In sending the treaty to the Senate, the Reagan administration said: "Torture is thus to be distinguished from lesser forms of cruel, inhuman, or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in case of torture." S. Treaty Doc. No. 100-20, at 3.
29. Id. at 15 (discussing Case of X v. Federal Republic of Germany).
30. Id. at 15-16. It is worth mentioning another important difference between Congress's antitorture law and the CAT. The CAT had defined torture as inflicting severe pain or suffering in order to achieve certain purposes, such as obtaining information or a confession, punishment, intimidation or coercion, or discrimination. Congress removed the purpose requirement. In this case, Congress's definition of torture was broader than the international definition. CAT, supra note 16, at art. 1.
31. The Supreme Court held in the 1990 Verdugo-Urquidez case that a warrantless search of the home of a Mexican drug cartel member suspected of murdering an American DEA agent did not violate the Constitution. Chief Justice Rehnquist reasoned that the Framers didn't intend the Bill of Rights to extend to aliens abroad precisely because of the potential for interference with military operations, with absurd results, such as destruction of property being found, battlefield deaths questioned as wrongful killings, and searches held unreasonably without a warrant. The Eighth Amendment's prohibition on cruel and unusual punishment expressly covers only criminal sentences, not actions taken by the military in wartime. While the Due Process Clause was not at issue here, the logic of this case implies that it too does not apply to aliens abroad. Otherwise virtually every action of the military against an enemy would be subject to constitutional challenge.
32. Even if the Fifth and Fourteenth Amendments' Due Process Clause applied, it would not bar coercive interrogation in wartime. "Only the most egregious official conduct" which "shocks the conscience" will give rise to a due process claim, the Supreme Court has said. It has not defined exactly what "shocks the conscience" means, but lower courts have found police or prison guard use of force, unnecessary and disproportionate to the situation, motivated out of malice and sadism, to meet that standard. Due process would also take into account the government's goal of protecting the nation from attack. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990); Johnson v. Eisentrager, 339 U.S. 763 (1950); Ingraham v. Wright, 430 U.S. 651, 664 (1977) ("An examination of the history of the [Eighth] Amendment and the decisions of [the Supreme] Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes"). See Rochin v. California, 342 U.S. 165 (1952); County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Courts have found physical violence such as rape, beatings, or shooting to violate due process, but not de minimis contact such as a slap, push, or shove. See, e.g., Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997); Webb v. McCullough, 828 F.2d 1151 (6th Cir. 1987).
33. 28 U.S.C. SS 1350.
34. See, e.g., Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D.Ga. 2002); Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19 (D.D.C. 2001); Cicippio v. Republic of Iran, 18 F. Supp. 2d 62 (D.D.C. 1998).
35. Ireland v. United Kingdom, ECHR (1978) series A, No. 25, para 167 (1978). The ECHR found the British methods had produced "intense physical and mental suffering to the person" which led to "acute psychiatric disturbances during the interrogation." It also found them to be degrading because they "arouse in their victims feelings of fear, anguish, and inferiority capable of humiliating and debasing them," which could break "their physical and moral resistance."
36. S. Treaty Doc. 100-20, supra note 18, at 4.
37. Supreme Court of Israel: Judgment Concerning the Legality of the General Security Service's Interrogation Methods, 38 I.L.M. 1471 (1999) (H.C. 5100/94, Pub. Comm. Against Torture in Israel v. Gov't of State of Israel, 53(4) P.D. 817).
38. Anthony Lewis, "Making Torture Legal," N.Y. Review of Books, July 15, 2004.
39. Jeremy Waldron, "Torture and Positive Law: Jurisprudence for the White House," 105 Colum. L. Rev. 1681, 1701 (2005).
40. The most well-known was a symposium on the Landau Commission Report published in 23 Israel L. Rev. (1989). There have been a number of collections published since 9/11, such as Sanford Levinson ed., Torture: A Collection (2004).
41. Model Penal Code SS 3.02; Wayne R. LaFave and Austin W. Scott, 1 Substantive Criminal Law SS5.4, at 627 (1986); United States v. Bailey, 444 U.S. 394, 410 (1980).
42. OLC August 2002 Opinion, supra note 24, at 41. Congress did not rule out the necessity defense, nor had Israel. Israel's Landau Commission concluded that if lives were at stake, an interrogator could apply "a moderate degree of physical pressure" in proportion to the danger, and could rely upon a defense of necessity if prosecuted. Israel's Supreme Court has also held that the necessity defense is available to interrogators engaged in coercion below torture. Israel S.Ct. GSS Opinion, at para. 34-37.
43. Anglo-American law has recognized self-defense to homicide since at least the time of the great eighteenth-century British jurist William Blackstone.
44. It must be necessary to use force to avoid the attack, the belief that force is necessary must be reasonable, the attack must be imminent, and the use of force must be proportional to the harm. LaFave & Scott, supra
note 41, at 663-64; see also Model Penal Code SS 3.04.
45. Michael Moore, "Torture and the Balance of Evils," 23 Israel L. Rev. 280 (1989). One complication is whether it can be claimed when the terrorist being questioned is not actually carrying out the attack himself, but merely has knowledge of it. Some scholars believe self-defense applies if the terrorist helped to create a situation where innocent lives may be lost.
46. In re Neagle, 135 U.S. 1 (1890).
47. Alliance for Justice, Lawyers' Statement on Bush Administration's Torture Memos, August, 2004, http://www.afj.org/spotlight/0804statement.pdf.
48. CAT supra note 16, art. 2.2.
49. LaFave & Scott, supra note 41, at 629-30.
50. December 2004 OLC Opinion, supra note 19.
51. It is a standard canon of statutory construction that laws which do not explicitly regulate the President or the military should not be read as doing so. Interfering with executive authority over wartime operations has always been frowned on in the law. Laws against murder or property destruction do not apply to the military in wartime. Congress authorized the President broadly to use force to prevent future attacks on the United States without any express limitations of methods of interrogation or the conditions and procedures for enemy detention.
52. Alliance for Justice, supra note 47.
53. 343 U.S. 579 (1952).
54. Id. at 637 (Jackson, J., concurring).
55. Regulation of domestic production, Justice Black wrote for the Court, "is a job for the Nation's lawmakers, nor for its military authorities."
56. John Yoo, The Powers of War and Peace (2005).
57. Memorandum from Walter Dellinger, assistant attorney general, Office of Legal Counsel, U.S. Department of Justice, to Abner J. Mikva, counsel to the President, Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. OLC 999 (Nov. 2, 1994).
