By Dan Eggen
Washington Post Staff Writer
Sunday, April 6, 2008
Thirty pages into a memorandum discussing the legal boundaries of military interrogations in 2003, senior Justice Department lawyer John C. Yoo tackled a question not often asked by American policymakers: Could the president, if he desired, have a prisoner's eyes poked out?
Or, for that matter, could he have "scalding water, corrosive acid or caustic substance" thrown on a prisoner? How about slitting an ear, nose or lip, or disabling a tongue or limb? What about biting?
These assaults are all mentioned in a U.S. law prohibiting maiming, which Yoo parsed as he clarified the legal outer limits of what could be done to terrorism suspects as detained by U.S. authorities. The specific prohibitions, he said, depended on the circumstances or which "body part the statute specifies."
But none of that matters in a time of war, Yoo also said, because federal laws prohibiting assault, maiming and other crimes by military interrogators are trumped by the president's ultimate authority as commander in chief.
The dry discussion of U.S. maiming statutes is just one in a series of graphic, extraordinary passages in Yoo's 81-page memo, which was declassified this past week. No maiming is known to have occurred in U.S. interrogations, and the Justice Department disavowed the document without public notice nine months after it was written.
In the sober language of footnotes, case citations and judicial rulings, the memo explores a wide range of unsavory topics, from the use of mind-altering drugs on captives to the legality of forcing prisoners to squat on their toes in a "frog crouch." It repeats an assertion in another controversial Yoo memo that an interrogation tactic cannot be considered torture unless it would result in "death, organ failure or serious impairment of bodily functions."
Yoo, who is now a law professor at the University of California at Berkeley, also uses footnotes to effectively dismiss the Fourth and Fifth amendments to the Constitution, arguing that protections against unreasonable search and seizure and guarantees of due process either do not apply or are irrelevant in a time of war. He frequently cites his previous legal opinions to bolster his case.
Written opinions by the Office of Legal Counsel have the force of law within the government because its staff is assigned to interpret the meaning of statutory or constitutional language. Yoo's 2003 memo has evoked strong criticism from legal academics, human rights advocates and military-law experts, who say that he was wrong on basic matters of constitutional law and went too far in authorizing harsh and coercive interrogation tactics by the Defense Department.
"Having 81 pages of legal analysis with its footnotes and respectable-sounding language makes the reader lose sight of what this is all about," said Dawn Johnsen, an OLC chief during the Clinton administration who is now a law professor at Indiana University. "He is saying that poking people's eyes out and pouring acid on them is beyond Congress's ability to limit a president. It is an unconscionable document."
Yoo defends the memo as a "near boilerplate" argument in favor of presidential prerogatives, and says its fundamental assertions differ little from those made by previous presidents of both parties. In comments to The Washington Post and other news organizations, Yoo has also criticized the Justice Department for issuing new legal opinions that do not include detailed discussions of specific interrogation tactics, which he views as crucial to defining the boundaries of what is lawful.
"You have to draw the line," Yoo said in an Esquire magazine interview posted online this past week. "What the government is doing is unpleasant. It's the use of violence. I don't disagree with that. But I also think part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more -- we could have written it in a much more palatable way, but it would have been vague."
The 2003 memo includes long discussions of the relative illegality of a wide variety of coercive interrogation tactics, including a British technique in which prisoners are forced to stand in a spread-eagle position against a wall and an Israeli technique, called the Shabach, in which a suspect is hooded, strapped to a chair and subjected to powerfully loud music.
Various courts had declared both tactics to be inhumane, but not torture, Yoo noted. This meant that they were illegal under a provision of the Geneva Conventions that the administration said had no relevance to unlawful combatants in its custody.
In another passage, discussing the bounds of Eighth Amendment protections involving confinement conditions, Yoo concluded that "the clothing of a detainee could also be taken away for a period of time without necessarily depriving him of a basic human need." Yoo cited the need to prove "malice or sadism" on the part of an interrogator before he or she could be prosecuted.
The interrogation memo was considered a binding opinion for nine months until December 2003, when OLC chief Jack Goldsmith told the Defense Department to ignore the document's analysis.
In his 2007 book "The Terror Presidency," Goldsmith, who now teaches law at Harvard University, said that some of the memos written by Yoo and his colleagues from 2001 to 2003 were "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."
Douglas W. Kmiec, a Pepperdine University law professor who served as constitutional legal counsel for Presidents Ronald Reagan and George H.W. Bush, said Yoo can be faulted "for not writing more narrowly." It is often better to "brush in hazy gray" rather than "spray paint in black and white," Kmiec said.