How To Write An Effective Torture Memo

Andrew Cohen: After Years Of Legal Wrangling, An Infamous Document Is Finally Made Public

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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One of the arts of fine lawyering is the art of making the ugly beautiful, the lame fleet, and the guilty determined innocent. By this measure, and perhaps this measure alone, John Yoo, the now-disgraced former architect of the Bush Administration’s terror law policies, is a masterful attorney.

Yoo’s March 14, 2003 “torture” memo-more formally known as In Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States-was made public late Tuesday after years of wrangling. The 81-page document was one of the legal bedrocks upon which the United States justified the torture of terror suspects. In effect for nearly nine crucial months at the start of the War in Iraq, Yoo’s work helped begat one of the great public relations disasters in American diplomatic history-the intensely chronicled prisoner abuse at Abu Ghraib.

The brilliance of the document-and of Yoo’s authorship of it-is that it enabled the Administration to hold a duck in its hand and sell it to the rest of the government (at least temporarily) as a swan. The old saw goes: when an attorney has bad facts, he argues the law; when he has bad law, he argues the facts. Yoo had bad law but two really “good” facts to offer: 1) the United States had been attacked by terrorists on September 11, 2001; 2) the attack had made the nation’s legal and political establishment willing (as it always is in times of war) to bend over backward in deference to a sitting president.

Yoo’s patrons demanded a legal justification for using “aggressive” or “enhanced” interrogation techniques (as they are even now euphemistically described) on terror suspects. The White House, and no doubt Yoo himself, knew that few pointed questions would be asked about his analysis and conclusions. Still, for the sake of history, something had to be put down on paper; something that would satisfy, at least temporarily, a straight-face credibility test. First, in 2002, Jay Bybee wrote a torture memo. Then, less than one year later, Yoo wrote his. The man and the moment and the dirty job had met.

The settled law-and not just the nooks and crannies of it-- was very much against allowing the sorts of “enhanced” interrogation practices that Yoo was proposing. He knew that. And he knew ultimately that other bright lawyers and judges would know that, too. So Yoo, methodically and with a great sense of the power of legalese, disassembled the definition of torture and then reassembled it to suit his goals. The memo is a legal Wonderland; analytical brick by brick Yoo created a rationale for expanding U.S. policy beyond where it had been before until black was white, up was down, and the laws against torture didn’t outlaw torture.

Reading the memo makes you think of the story of the frog which slowly boils to death in the pan as the water temperature slowly is raised. It reads like every other memo ever written by a loyal and zealous lawyer who was told by his client which course of conduct the client wanted to justify. Here is what I want to do, the client says to the lawyer, no go ahead and give me some legal support that helps me do it. The law doesn’t exactly allow it? That’s okay. Make the best arguments you can and we’ll take our chances in court.

Yoo’s starts us all on this ill-fated journey with a series of vital-but cleverly hedged-conclusions on Page 4 of the memo. “Because of the asymmetric nature of terrorist operations,” he wrote, information is perhaps the most critical weapon for defeating al Qaeda….. obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States… Interrogation of captured al Qaeda operatives could provide that information… it is reasonable to believe that information gained from al Qaeda personnel could prevent attacks….” (Note: Author's emphasis).

This speculation morphed, on page 18 of the memo, into the following declaration: “… the conduct at issue here- interrogations- is a core element of the military’s ability to prosecute a war.” Then, having declared that the President possessed “complete authority over the conduct of war,” Yoo’s succeeded in vitiating Congress’ role in the affair. “… In the absence of a clear statement from Congress otherwise,” Yoo wrote, “we will not read a criminal statute as infringing on the President’s ultimate authority in these areas.”

Through this passage, Yoo was conveniently concluding that the federal law banning torture did not apply to the White House unless the White House decided that it would. Nice work if you can get it, right? To be able to unilaterally determine which laws apply to you and which don’t? This is a theme throughout the memo. So is Yoo’s penchant for citing prior internal executive branch memos to help him support his own arguments. This may be standard practice within the corridors of power but it is akin to a lawyer citing his own brief as controlling precedent in a case that is before the court.

But it was on the substance of the torture statute that Yoo really shone. First, he made the case for why only the most extreme forms of torture were banned-a conclusion which probably would have shocked most of the legislators who decades ago voted for the law. Then he offered his client a virtual “how to” guide to torture, and to the administration of “mind-altering substances,” explaining in detail how a potential “defendant” (i.e. the person committing the interrogation) could avoid prosecution by establishing “good faith” in advance of the torture session.

Only rarely did Yoo show any measure of doubt about the great legal leap he knew he was taking in justifying extreme interrogation methods. These people, remember, will not be known to history for their penchant for self-criticism or reflection.

And in the end, of course, the policy behind Yoo’s masterwork was as flawed as his implementation of it was deft. The mechanics were there. The soul and the conscience were not.

For these reasons, and others, Yoo should never again play any role in government. But his memo has otherwise convinced me of his skills of persuasion. He can be my attorney any day and I promise to call him if I ever want to challenge a parking ticket in court.

[Rivera1001]

Moral arguments aside, the problem with enhanced interrogation techniques is that they produce unreliable information that wastes valuable time. Those subjected to these techniques often confess to whatever accusations are leveled against them and even fabricate information to end the pain. This bad info then has to be investigated. And, as we saw in Iraq, people accuse those who have done nothing in order to seek revenge for personal reasons, resulting in the abuse of people who have no information. This method of gathering intelligence is haphazard, inefficient, and requires subjective guessing on the part of interrogators. There are technologies available that require no pain be inflicted and that are much more reliable. EEGs used in conjunction with fMRI scans can reliably detect whether someone is lying. Adding safe drugs that inhibit the urge to deceive is a vastly more effective and humane tool for gathering timely intelligence.

[frankbowers]

Infe 5 you are speaking through buds''s books THERE IS AND HAS BEEN TORTURE IN THE GC AND I WAS THERE IN 55-63 WHERE YOU GOT YOUR INFORMATIN I DO NOT KNOW LPERHAPS YOUR WERE READING THIS ATTORNEY YOO FROM KOREA BOOKS OR SOMETHNG, I WAS IN THE 11TH AND 101ST AND I KNOW FOR A FACT IT WAS READ TO ME AND I WAS ONLY IN THE QM NOT THE INFANTRY, AT LEAST 4 OR 5 TIMES PRIOR TO THE VIET NAM INCIDENT.
WHEN THE CS GAS WAS USED IT WAS LITTLE AND WE WERE ABLE TO GET OUT OF IT AND RINSE OFF OUR FACES PRIOR TO SEVER RESIDUE PAIN.
I am sorry Kansas 1946 we will never in your and my life time recover from the dismal history he has laid down for the young and innocent as well as the military women and men who he lied too and they supported his savage murder of them, the innocent Iraq men, women, and children I pray GOD HAS A SPECIAL SEAT IN HELL FOR HIM TO BURN IN where there will be no water to run his tougue through or over his bunring head.
As for the damage he and the attorney cover up for about 18 months is more than a disgrace and if there is a GOD in heaven he will pay and I believe in God.
Frank Bowers

[frankbowers]

What a disaster this scum bag S***O***B and gw bush are and have been to this great country and all we have to thank is the religious majority and the neo-con republicans with rummy head and the dodger cheney. How the people ever believed the deserter I will never know I know I never bellieved hims and did not vote for him for governor and/or president NOW ALL WE CAN SAY IS SHAME OF THOSE WHO DID AND EVEN BRAGGED ABOUT SUCH. Frank Bowers of Austin, tx

[kansas1946]

The Bush adminstration is evil. America will survive his tenure in office, but the damage will take years to mend.

[infe5]

"torture is very specifically described in the Geneva Convention" - posted by taddles

That is a blatant lie. Why do you think this is even an issue? It is BECAUSE the Geneva Convention provides no specifics on what constitutes torture. You are ill-informed and allow partisan ideals to blind you to debate. A common problem on these boards.

[infe5]

@ taddles,

I should also add the following: I specifically said if a court rules that laws were broken by the US, those responsible should be punished. Plain and simple. All your counterpoints do not even address my post. Improve your reading comprehension.

[infe5]

@ taddles,

Stop twisting my words. I never said waterboarding was a little water down the wrong pipe. I said a little water down the wrong pipe while swimming produces the exact same involuntary response as waterboarding. This is absolute fact. My argument comparing CS gas expsosure as a requirement for military recruits (you served, so you no doubt experienced that same as me) is relevant as well. CS gas exposure results in a similar but much harsher involuntary response than waterboarding, yet we do not claim this is torture. I have reproduced the circumstances of waterboarding and experienced it for myself (albeit not for repeated occurances as happen under interrogation). It was exactly as I described. You should try it yourself. Hell, frat boys waterboard each other for ENTERTAINMENT! There are plenty of videos available that show this. Get off your partisan high-horse and use some common sense.

[taddles-2009]

"This interrogation method leaves no scars, mental or physical, it is just a very uncomfortale experience.

Posted by infe5 at 12:01 PM : Apr 03, 2008"


I don''t recall when I was in service where we were told we could disregard the Geneva convention.

[taddles-2009]

"Does this mean we torture every single military recruit during basic training? No! of course not.

Posted by infe5 at 12:01 PM : Apr 03, 2008"


Your argument is sophomoric. You have never been waterboarded and trying to naively equate it with " a little water down the wrong pipe" is ignorant at the least.

Regardless of your inaccurate and juvenile understanding of waterboarding, torture is very specifically described in the Geneva Convention and any signatory, which the US is, who uses ANY form of torture under ANY circumstance is liable for punishment under international law.

You may stupidly think that waterboarding is just a "little water down the wrong pipe", but Bush and his entire staff for advocating and using it have committed war crimes. This is simply a fact.

[infe5]

If it is ever ruled by a determining court that laws were broken, there should obviously be punishment. Simply because laws were broken. People who consider waterboarding (arguably the most controversial of these methods) an evil form of torture are taking an extreme stance in my position. Waterboarding leaves no permanent physical harm or disfigurment. Have you ever been swimming and got a little water down the wrong pipe? You start an automatic cough/gag reflex that is very uncomfortable. This is the same response waterboarding induces albeit for prolonged amounts of time. Hell, I (as well as every military recruit in basic training) was exposed to CS gas which induces a more harsh response for several minutes. Does this mean we torture every single military recruit during basic training? No! of course not. When riot police use gas to disperse crowds, are they torturing all those people? No! This interrogation method leaves no scars, mental or physical, it is just a very uncomfortale experience.

[rushlimpdrug]

Amazing, this man can shred the laws of America,
but ask if he is Chineeze and the post gets deleted.
Wow!
Keep him Beuklee.
Still a big black eye for that univesiteee.

[gkc99]

Attention University of California graduates!!

Contact your alumni association or director of planned giving and tell them you will not send UC a dime until John Yoo is removed from the UC Boalt Law School faculty.

There is no reason to support a university that gives money and credibility to a cockroach like Yoo.

And it cannot be an academic freedom issue because Yoo is ANTI-FREEDOM!

[dahlimama-2009]

I have always been proud to be an American because I felt we stood for what was ethical and we set an example for other countries to follow.It was all a lie.Off shore torture sites to avoid U.S. legal protections,Abu Ghraib ,military tribunals where most of the information to defend yourself has been called classified to protect the torturers. I''m so ashamed of this country.We are no better than the rest and a lot worse than many.As a side note to one of the above, yes you are very clever and should get a gold star for your little forehead for pointing out a grammatical error we all applaud your brilliance.most of us read the story for the content and would have missed that grievous mistake.

[dahlimama-2009]

I have always been proud to be an American because I felt we stood for what was ethical and we set an example for other countries to follow.It was all a lie.Off shore torture sites to avoid U.S. legal protections,Abu Ghraib ,military tribunals where most of the information to defend yourself has been called classified to protect the torturers. I''m so ashamed of this country.We are no better than the rest and a lot worse than many.As a side note to one of the above, yes you are very clever and should get a gold star for your little forehead for pointing out a grammatical error we all applaud your brilliance.most of us read the story for the content and would have missed that grievous mistake.

[dahlimama-2009]

I have always been proud to be an American because I felt we stood for what was ethical and we set an example for other countries to follow.It was all a lie.Off shore torture sites to avoid U.S. legal protections,Abu Ghraib ,military tribunals where most of the information to defend yourself has been called classified to protect the torturers. I''m so ashamed of this country.We are no better than the rest and a lot worse than many.As a side note to one of the above, yes you are very clever and should get a gold star for your little forehead for pointing out a grammatical error we all applaud your brilliance.most of us read the story for the content and would have missed that grievous mistake.

[bmadeline-2009]

And we don''t impeach or imprison Bush and Cheney for what reason? Nixon couldn''t hold a candle to these evildoers.

[brianbwb-2009]

Posted by Prelgovisk

There is no evidence that US torture saved a single American life, in fact, the object of torture is not to extract truthful information, it is to make the victim say whatever the torturer wants to hear.

That is the reason that "they", whomever "they" are in your assumption, simply cut off heads, being a bit smarter, they realize that torture is pointless.

A note to the author of the article;

"Yoo%u2019s work helped begat..." in your context, the word should be "beget", Yoo''s action either "begat" (a direct causal correlation in past tense), or helped to beget ("helped" being the past tense verb).

English is much more understandable when used correctly.

[prelgovisk]

They would never torture us...for information. They just cut of your head with a butter-knife and put the video on the internet for your family and friends to see. But some how we are the bad guys because we dunk their heads in water to get information that saves lives in the US, and the lives of Muslim people around the world.

[andor3]

not sure this is evil, but it definitely hurt the nation the were sworn to serve.

[tom_gwynn]

This man must be disbarred. He has no right to practice law after working so hard to undermine it.