This Saturday, a time bomb will start ticking. The eight-year statute-of-limitations period applicable to the Federal Torture Statute will soon expire. Then, for time immemorial, it will be official: If you torture or conspire to torture in the name of the United States of America, no consequences will follow. We will have officially sanctioned torture.
Why this Saturday? On January 9, 2002, a memo not as well known as the so-called "torture memos" was completed by John Yoo and Robert Delahunty. Addressed to Defense Department General Counsel William Haynes II, and titled "Application of Laws and Treaties to al Qaeda and Taliban Detainees," it is one scary memo. It may be the first evidence of our national policy of torture, what Major General Antonio Taguba, the man selected by the Pentagon to report on Abu Ghraib, called "a systematic regime of torture." The John Yoo and Jay Bybee memos that followed in August of 2002, with their it’s-not-torture-until-organ-failure-occurs, have gotten much more publicity. But the Jan. 9 memo, written in much less inflammatory legalese, was the memo that may well have given the green light for torture. This is where the conspiracy to torture may have begun. Here’s why.
It was not a memo; it was a brief. Legal memos typically lay out the current state of the law on a given issue. They give arguments on all sides and generally inform the client what the legal consequences of a proposed action may be. On the other hand, legal briefs argue a particular side of an issue, with the expectation that in our adversary system of justice, the other party, in its brief, will argue the other side. In the Yoo-Delahunty "memo," every single question raised came out exactly the same way: The Geneva Conventions do not apply.
This was presented as a dispassionate explanation of the state of current law — they even called it a "memorandum" — but it was nothing of the sort. Its arguments seemed destined to reach only one possible conclusion. And the conclusion they reached led our government to adopt that position for the first time in our history. How do we know there were arguments Yoo and Delahunty did not present? No more than two days later, on January 11, 2002, the State Department’s William Howard Taft IV issued in response a 40-page memo. In that memo, he wrote that their two-day review led them to believe that the "factual assumptions...and legal analysis [of the Yoo-Delahunty memo were] seriously flawed."
It was the first time in our history that our government said Geneva Conventions did not apply. The Yoo-Delahunty memo was not putting forward a commonly accepted view of the state of the law. In fact, the position proposed had never before been adopted by the United States government. The Conventions are not late-20th century legalisms. In fact, we ratified our first Geneva Convention in 1882. Certainly sometimes we did not follow the Conventions we had ratified. But never before was it stated policy that the Conventions do not apply in a particular war. This was nothing close to mainstream legal thinking.
The Yoo-Delahunty "memo" failed to mention the Convention Against Torture (CAT) or the Federal Torture Statute (18 U.S.C. Secs. 2340 and 2340A-B). On behalf of the United States, Ronald Reagan signed the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on April 18, 1988. On October 21, 1994, the treaty was ratified by the United States Senate. That same year, Congress passed and President Clinton signed the Federal Torture Statute as legislation implementing CAT. The Yoo-Delahunty "memo" is titled, "Application of Treaties and Laws to al Qaeda and Taliban Detainees." Neither CAT nor the Federal Torture Statute were even mentioned in the 42-page document.
This is not to say that Yoo and Delahunty do not have a possible explanation for this oversight. The "memo’s" second sentence reads as follows: "In particular, you have asked whether the laws of armed conflict apply to the conditions of detention and the procedures for trial...." Defenders of Yoo and Delahunty (see Jeffrey K. Shapiro, "Legal Ethics and Other Perspectives," in The Torture Debate in America (2006), pp. 229-35) argue that CAT and the Federal Torture Statute are not part of the laws of armed conflict. They apply in all circumstances, not merely in wartime, so they didn’t have to be included. Legal ethics experts have said such an explanation would expose a private lawyer to certain malpractice liability. (See, e.g., Stephen Gillers, "Legal Ethics: A Debate," in The Torture Debate in America (2006) pp. 236-240.) It would be as if a client asked for legal advice about a non-existent federal law regarding armed robbery, and the lawyer neglected to mention that every state had laws against such activity.
How the "memo" was going to be used was crystal clear. Yoo and Delahunty were asked about laws regarding "conditions of detention and procedures for trial." As Yoo and Delahunty noted on page 2 of their "memo," this request did not include the major issue of the availability of habeas corpus for the detainees at Guantanamo. That had been dealt with in an earlier memo. So what "conditions of detention" demanded an OLC memorandum? Was it detainees’ amount of exercise time? Was it commissary privileges? Was it how often detainees had to be provided with a change of socks? Hardly. No competent lawyer could possibly question what was meant by "conditions of detention." This was clearly about torture. They knew, or they should have known.
Making this even more clear is the fact that the torture — the stress positions, the sleep deprivation, the solid food deprivation, the putting of people into small boxes, possibly even the waterboarding — began well before the so-called "torture memos" were completed on August 1, 2002. On what Office of Legal Counsel opinions did those practices rely? Either the January 9, 2002, "memo" was a ratification of already-intended practices, or it was the "memo" that gave the green light for torture to proceed. The Geneva Conventions proscriptions against torture were ruled out, and the Convention Against Torture’s proscriptions were ignored.
The Yoo-Delahunty defenders do them a disservice. Mr. Yoo is a law professor at Boalt Hall School of Law at the University of California at Berkeley (firstname.lastname@example.org). Mr. Delahunty is a law professor at the University of St. Thomas School of Law in Minneapolis, Minnesota (email@example.com). Each has been defended by some law school colleagues.
In an October 20, 2009, PBS "News Hour" report, Jesse Choper, law professor at Boalt, said: "People say, well, he was told — he knew what they wanted, and he gave it to them. I don’t believe that. He gave them what — he gave them an approach that was wholly consistent with virtually everything he did as a scholar beforehand." If true, this may defend Mr. Yoo, but in doing so, it indicts those who sought his opinion. They knew precisely what they were going to get. That was why they asked him to write the "memo." They were merely seeking a "legal shield" for their predetermined policy. And just because Mr. Yoo had written these views beforehand, hardly makes them the accepted view of what the state of the law was.
In a June 22, 2009, letter made public on August 6, 2009, the University of St. Thomas Law School’s Dean Thomas Mengler wrote: "Furthermore, Delahunty was not at the Justice Department when the key memos were written. In January 2002, Delahunty left the Justice Department for the White House where he was on loan for 18 months. While Delahunty was in the White House, not the Justice Department, is when many of the questions regarding interrogation tactics were answered." Well, that’s not quite the whole story. Delahunty was still Special Counsel to the Office of Legal Counsel while he was at the Department of Homeland Security at the White House. This is confirmed by a still-secret Nov. 18, 2003, memo he co-authored with Jack Goldsmith, then head of the OLC. (This was revealed in a declaration by Steven Bradbury in the ACLU et al. v. Dept. of Defense case on June 7, 2007.) Moreover, the public record is replete with examples of torture occurring systematically long before the August 1, 2002, "torture memos" were written.
The Jan. 9, 2002, Yoo-Delahunty "memo" may well have been the key memo that began the Bush administration’s "legalization" of its systematic policy of torture. Yoo and Delahunty may have been part of a conspiracy to torture and may be criminally liable under the Federal Torture Statute. Eight years have passed, and their exposure under the torture statute will expire whenever the last act of the conspiracy is determined to have occurred. The statute of limitations’ ticking time bomb has begun to tick.