In heated testimony before a House Judiciary subcommittee Thursday; former Justice Department official John Yoo downplayed his role in crafting the Bush administration’s brutal interrogation policies.
“Decisions about interrogation methods at Guantanamo Bay were made by the Defense Department,” said Yoo, who was a deputy assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC) and now a UC Berkeley law professor, in testimony before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
But Yoo’s testimony was undercut at times by material he included in his 2006 book, War by Other Means: An Insider’s Account on the War On Terror, where he discussed meetings he participated in to help develop policy for the “war on terrorism.”
Moreover, Yoo wrote about a trip he took to Guantanamo Bay with other senior administration officials to observe interrogations and participated in discussions about specific interrogation methods. Yoo’s trip to the prison facility has not been previously reported.
David Addington, Vice President Dick Cheney’s chief of staff, who participated in numerous cabinet level meetings regarding harsh interrogations methods, also testified Thursday.
Based on the generalities of the questions directed at Yoo, and his refusal to respond to some of the more simpler queries, it appeared that Democratic committee members were unfamiliar with the contents of his book. He discussed, in far greater detail than his testimony Thursday, how he formed legal opinions on torture, his reasons for recommending that the White House ignore the Geneva Conventions, and warrantless wiretaps.
Yoo is the author of an August 2002 legal opinion widely referred to as the torture memo that gave CIA interrogators legal cover to implement brutal methods during the interrogations of suspected terrorists. He also drafted a second, similar opinion for military interrogators in March 2003.
Yoo’s legal opinion stated that unless the amount of pain administered to a detainee results in injury “such as death, organ failure, or serious impairment of body functions” than the interrogation technique could not be defined as torture.
The memo was withdrawn in 2004 by former OLC head Jack Goldsmith who wrote in his book The Terror Presidency that Yoo’s “torture memo” was “legally flawed,” sloppily written, and called into question whether the White House was provided with sound legal advice.
The 2000 health benefits statute Yoo used “defined an ’emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function,” Goldsmith wrote in The Terror Presidency.
“The health benefits statute’s use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like…. OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark.”
The Justice Department’s Office of Professional Responsibility (OPR) confirmed in February that is had been investigating whether Yoo and other OLC attorneys involved in the drafting of the torture memos gave the White House poor legal advice.
Yoo’s book offers some clues behind the genesis of the August 2002 torture memo. He wrote that in December 2001 “senior lawyers from the attorney general’s office, the White House counsel’s office, the Department’s of State and Defense, and the [National Security Council] met to discuss the work on our opinion” regarding whether the Geneva Convention applied to members of al-Qaeda and the Taliban. Yoo wrote that he too participated in the meetings.
“This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism,” Yoo wrote. “Meetings were usually chaired by Alberto Gonzales…his deputy, Timothy Flanigan, usually played the role of inquisitor, pressing different agencies to explain their legal reasoning to justify their policy recommendations.”
Yoo wrote that the Defense Department was represented by its general counsel William “Jim” Haynes, the State Department by legal adviser William House Taft IV, and the NSC by John Bellinger, that agency’s legal adviser. Haynes testified last week before the Senate Armed Services Committee about his role in the brutal interrogations that took place at Guantanamo.
These meetings Yoo described appear to be similar to those disclosed in a report by ABC News in April, which said that President George W. Bush approved discussions that his top aides held about harsh interrogation techniques.
“The most senior Bush administration officials repeatedly discussed and approved specific details of exactly how high-value al-Qaeda suspects would be interrogated by the CIA,” ABC News reported, citing unnamed sources.
“The high-level discussions about these ‘enhanced interrogation techniques’ were so detailed, these sources said, some of the interrogation sessions were almost choreographed – down to the number of times CIA agents could use a specific tactic.
“These top advisers signed off on how the CIA would interrogate top al-Qaeda suspects – whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding, sources told ABC News.”
Yoo wrote that his department often clashed with the State Department about international law banning torture.
“In our arguments, State would authoritatively pronounce what the international law was,” Yoo wrote. “OLC usually responded ‘Why?’–as in why do you believe that, why should we follow Europe’s view of international law, why should we not fall back on our traditions and historical state practices?”
Yoo wrote that the policies he and other senior administration officials recommended, that al-Qaeda and the Taliban were not entitled to the protections of the Geneva Convention, rankled military lawyers.
“Judge Advocates General [JAG’s] worried that if the United States did not follow the Geneva Conventions, our enemies might take it as justification to abuse American POW’s in the future,” Yoo wrote. “From what I saw the military had a fair opportunity to make it’s views known. Representatives from the Joint Chiefs of Staff, including uniformed lawyers, were present at important meetings on the Geneva question and fully aired their arguments.”
The consensus among the officials who participated in the in the December 2001 meetings formed the basis of a legal memorandum sent to Gonzales that advised the White House that al-Qaeda and Taliban prisoners were not entitled to the protections of prisoner of war status or the Geneva Convention.
President Bush accepted that legal opinion on Jan. 18, 2002.
“The only way to prevent future September 11s will be by acquiring intelligence,” Yoo wrote. “The main way of doing that is by interrogating captured al-Qaeda leaders or breaking into their communications…. In an opinion eventually issued on January 22, 2002, OLC concluded that al-Qaeda could not claim the benefits of the Geneva Conventions.”
Yoo also wrote that in January 2002 he and the other administration officials who participated in the meetings in December 2001 took a trip he took to Guantanamo Bay to observe the interrogations of several detainees
The trip took place seven months before he drafted the first legal opinion on interrogation techniques that was later withdrawn.
“A gust of warm, humid air embraced us as we disembarked at the U.S. Naval Base at Guantanamo Bay,” Yoo wrote in his book. “I was the junior person on the flight among the senior lawyers there from the White House, Departments of Defense, State and Justice. The group of us who landed that day had no idea that the “front” in the war on terrorism would soon move from the battlefields of Afghanistan to the cells of Gitmo.”
Yoo wrote that on the flight to Guantanamo he was seated next to Taft and “sought to make clear that the president could…decide that the Geneva Conventions would apply to Afghanistan…including common article 3’s guarantee of basic humane treatment of detainees.”
“When our group of lawyers visited Gitmo, the Marine general in charge told us that several of the detainees had arrived screaming that they wanted to kill guards and other Americans,” Yoo wrote, in the context of explaining why the prisoners were not entitled to the benefits of the Geneva Convention or POW status. “Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees ant to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights…is infeasible.”
Yoo added that a few weeks after he returned from Guantanamo “the lawyers met again in the White House situation room to finally resolve the issue for presidential decision.”
“If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al-Qaeda leaders,” Yoo wrote. “We would be able to ask Osama bin Laden loud questions and nothing more. Geneva rules were designed for mass armies, not conspirators, terrorists, or spies.”
Consensus eluded the group,” Yoo wrote. Alberto “Gonzales had the unenviable task of summarizing the different positions for President Bush and attempting to forge a consensus.”
Gonzales “recommended that the President find that neither al-Qaeda nor the Taliban were covered by Geneva.”
Powell, Yoo wrote, urged President Bush to reconsider that position.
On Feb. 7, 2002, President Bush sent a memo to Vice President Dick Cheney, Secretary of State Colin Powell, National Security Adviser Condoleezza Rice, Chief of Staff Andrew Card, Defense Secretary Donald Rumsfeld, CIA Director George Tenet, Attorney General John Ashcroft, General Richard Myers, the Joint Chiefs of Staff, which said, according to Yoo’s book, “the Geneva Conventions only applied to conflicts involving states fighting with regular armed forces.”
“However,” Bush wrote in the memo, according to Yoo, “the war on terrorism ushered in a new paradigm, one in which groups with broad, international reach commit horrific crimes against innocent civilians, sometimes with the direct support of states. [President Bush] accepted that he could suspend the Conventions with regard to Afghanistan, but decided not to. Instead, he found that the Taliban were “unlawful combatants”…[and] also found that common article 3 applied only to an “armed conflict not of an international character,” and hence neither to the war with al-Qaeda nor the Taliban.”
"[DNC Chair Tom Perez] has gotten instructions from Bill Clinton not to let the party go to the Bernie Sanders folks." - Jonathan Allen, co-author of Shattered, revealing new material in the upcoming paperback release pic.twitter.com/dLEnwl7kIc— HootHootBerns 🌹🐦 (@HootHootBerns) May 3, 2018