Torture, Necessity, Self-Defense — and John Yoo’s Fundamental Dishonesty

by Kevin Jon Heller

Dave Kopel has a post today at The Volokh Conspiracy in which he dusts off John Yoo’s argument in the infamous 14 March 2003 memo that a CIA interrogator prosecuted for torture would be able to invoke the defenses of necessity and self-defense.  I am not interested in responding to Kopel’s post, which grossly mischaracterizes my position on torture prosecutions and — far worse — identifies me as an Australian and spells my name wrong.  Instead, I want to focus on two moments in Yoo’s argument that illustrate the fundamental dishonesty of his legal analysis.

We can begin with necessity.  There are many reasons to question whether a CIA interrogator could raise a necessity defense: he would have a difficult time arguing that it was a response to a “clear and imminent danger” of a terrorist attack; a reasonable person would be unlikely to consider torture an effective means of obtaining information; the interrogator could have relied on legal avenues to avert the purported harm, such as non-coercive interrogation.  Most problematic of all, however, is the fact that the necessity defense applies — to quote § 3.02 of the Model Penal Code — only where “a legislative purpose to exclude the justification claimed does not otherwise plainly appear.”  A statement of legislative purpose to exclude a necessity defense more plain than Article 2(2) of the Convention Against Torture is difficult to imagine: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”

Here is where Yoo’s dishonesty comes in.  Yoo is fully aware that Article 2(2) dooms the necessity defense if it has been incorporated into US law, so he simply argues that it has not been incorporated (p. 76):

CAT contains an additional provision that “no exceptional circumstances whatsover, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” CAT art. 2.2. Given that Congress enacted 18 U.S.C. §§ 2340-2340A in light of CAT, Congress presumably was aware of this provision of the treaty, and of the definition of the necessity defense that allows the legislature to provide for an exception to the defense, see Model Penal Code § 3.02(b), yet Congress did not incorporate CAT article 2.2 into section 2340. Nor did Congress amend any of the generally applicable criminal statutes to eliminate this defense in cases of torture. Given that Congress omitted CAT’s effort to bar a necessity or wartime defense, we read section 2340 and the federal criminal statutes applicable to the special maritime and territorial jurisdiction as permitting the defense.

There is only one problem with that argument — it directly contradicts the official position of the United States.  Consider the following statement made by the State Department in its Initial Report to the Committe Against Torture on the US’s implementation of the Torture Convention:

Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.

That report was filed in 1999, before 9/11.  So now consider the Bush administration’s position in its Second Periodic Report to the Committee Against Torture, filed four years after 9/11:

6. The United States is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the United States, repeatedly reaffirmed at the highest levels of the U.S. Government.

7. All components of the United States Government are obligated to act in compliance with the law, including all United States constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment. The U.S. Government does not permit, tolerate, or condone torture, or other unlawful practices, by its personnel or employees under any circumstances. U.S. laws prohibiting such practices apply both when the employees are operating in the United States and in other parts of the world.

8. The legal and policy framework through which the United States gives effect to its Convention undertakings has not changed fundamentally since the Initial Report.

I suppose it’s possible that Yoo was completely unaware of the official US position concerning Article 2(2) and didn’t bother to check before issuing a formal OLC memo that concluded a CIA interrogator could invoke the necessity defense.  If so, his professional malpractice is staggering.  I think it is far more likely, however, that he knew his argument was inconsistent with the position of his own administration but simply didn’t care, taking a calculated risk that his memo would never be subjected to public scrutiny.  If so, his dishonesty is staggering.

Nor was his legal analysis of self-defense any better.  Once again there is an imminence problem: except in the fanciful “ticking time-bomb” scenario, it is difficult to see how a CIA interrogator could persuasively argue that the torture of a detainee was necessary to prevent an imminent terrorist attack.  Even if he could, however, the self-defense argument would still have a fatal flaw: the “defensive” force would not have been directed against the individual(s) threatening the unlawful attack.  An individual can use force to defend a third party, but he cannot use force against a third party — the force must be directed against the source of the attack.

Once again, Yoo recognizes the problem — and “answers” it:

Self-defense as usually discussed involves using force against an individual who is about to conduct the attack. In the current circumstances, however, an enemy combatant in detention does not himself present a threat of harm. He is not actually carrying out the attack; rather, he has participated in the planning and preparation for the attack, or merely has knowledge of the attack through his membership in the terrorist organization. Nonetheless, some leading scholarly commentators believe that interrogation of such individuals using methods that might violate section 2340A would be justified under the doctrine of self-defense, because the combatant by aiding and promoting the terrorist plot “has culpably caused the situation where someone might get hurt. If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible, and on the same basis that self-defense is permissible.” Michael S. Moore, Torture and the Balance of Evils, 23 Israel 1. Rev. 280, 323 (1989) (symposium on Israel’s Landau Commission Report).  See also Alan M. Dershowitz, Is It Necessary to Apply “Physical Pressure” to Terrorists — and to Lie About It?, 23 Israel 1. Rev. 192, 199-200 (1989). Thus, some commentators believe that by helping to create the threat of loss of life, terrorists become culpable for the threat even though they do not actually carry out the attack itself.

It is not difficult to critique the substance of this argument, but such a critique is unnecessary.  Far more problematic is what Yoo cites in defense of this radical revision of traditional self-defense doctrine, which even he acknowledges is radical: two law review articles written by extremely conservative criminal-law scholars.  That’s it.  Not a US case.  Not a foreign case.  Not an international case.  Not a ratio.  Not an obiter.  Nothing.  According to Yoo, CIA interrogators can claim self-defense because two criminal-law scholars believe that traditional self-defense doctrine is inadequate in the post-9/11 era.  Again, the dishonesty of Yoo’s legal “analysis” is staggering.

I am glad that Kopel is trying to rekindle debate over necessity and self-defense.  Perhaps this time we can bury the mistaken idea that a CIA interrogator could rely on those defenses once and for all.

13 Responses

  1. I suppose it’s the eternal cross to bear for New Zealanders, being mistaken for Aussies.

    I’m not sure the language of the CAT really counts as a “legislative purpose” though, especially given the conditional acceptance of the treaty itself and the law passed to enact the treaty using very different language from the treaty itself.

  2. Prof. Heller, while the official U.S. position on the treaty is [X], Congress implemented the CAT through domestic legislation.  Accordingly, isn’t it arguable that that legislation, and not the CAT, defines and limits the scope of U.S. obligations under the treaty, and furthermore defines and limits the scope of criminal liability for “torture”?
    If that is so, then the executive branch’s position on the treaty is entitled to little weight.  As a non-self-executing treaty (because it requires criminalization of conduct, something that can only be done through a statute), the only domestic force of law that the CAT has is through 2340A.  Accordingly, couldn’t a U.S. court review the necessity defense/exception de novo, without looking to or deferring the U.S. position on the treaty?

  3. IS,

    The State Department was reporting to the Committee Against Torture how Congress had implemented CAT, not the administration’s position on CAT.  So although I suppose one could argue that the State Department misunderstood the legislative intent behind s2340A, I don’t think that is a very persuasive argument.  If the State Department was wrong about such a fundamental issue — namely, whether Congress had incorporated CAT in a manner directly inconsistent with CAT’s object and purpose of absolutely prohibiting torture — you would think Congress would have corrected them at some point in the decade since the initial report.

  4. By the way, for the sixteenth time, I am an American, born and raised in the good ol’ USA.  I like rugby and cricket, but they will never replace basketball and football in my heart.  Go Bulls!

  5. I am not sure the State Dep’t’s position is “law.”  When giving its advice and consent to the CAT, the Senate made clear that “[t]he Senate’s advice and consent is subject to the following declarations: (1) That the United States declares that the provisions of Articles 1 through 16 of the Convention are not self-executing….”

    In other words, no part of the treaty has domestic force of law, except as implemented through legislation.  I think, then, the argument about criminal liability has to take place SOLELY under the criminal statute and not under the CAT.  And that makes it more LIKELY (though by no means assured) that necessity can be raised a defense.

    Of course, the language of the CAT and the State Dep’t’s representations are factors to be considered, but they are not dispositive and cannot replace (1) the statutory criminal standard and (2) U.S. common law of necessity.

  6. IS,

    If there was anything in the legislative history to support the idea that Congress didn’t intend to incorporate Article 2(2), your argument might have force.  But there isn’t.  Indeed, if you look at 2340 and 2340A, it’s clear that the Congress incorporated CAT to give effect to all of the US’s reservations to the treaty — which did not include a reservation to Article 2(2).

  7. And, of course, you are misstating my position.  I never said the State Department position is “law.”  As is very clear from my comment, I said that it was a description of Congress’ intent — one that Congress has never disagreed with or corrected.

  8. I am, happily, Australian. But I do understand your angst at being described as a kiwi 😉

    And from an Australian perspective at least, the State department stuff does sound irrelevant. In fact, here I think it would irrelevant to the point of inadmissibility, even leaving aside the fact that it is post-facto which is arguably grounds for inadmissibility on its own. And we don’t even have a legally practically speaking, a legally distinct executive. In Oz, at least, the difference in legislative language vis-à-vis the treaty language would seem to be almost irrefutable prima facie evidence of contrary intent.

    This is because the State Department view simply doesn’t tell you anything about Congress’ intent. It’s staff are not even appointed by Congress, or even really responsible to it. And if you did argue this, surely you expose yourself to the argument that Congress’ intent is in fact (far better) demonstrated by the implicit  (if not explicit) authorisation of several of its senior representatives?

    Finally, strictly speaking, it would have to be the administration which would be arguing necessity, not the interogators’ themselves (since it would ‘national’ necessity, not personal). Particularly in light of the traditional US judicial deference to the executive, this
    colours the argument differently to how you seem to have pictured it. Ultra-finally, the evidentiary position of the executive’s view would be complicated to say the least.
    PS, this is perhaps the most sobering anti-prosecution take I have come across. (And that was the most complex link-embedding process I have yet come across, too.)

  9. Oh damn, I think that’s the second time I’ve made that mistake…

  10. I agree that it would have been better to discuss the 1999 filing.  That said, it strikes me as somewhat weak evidence of Congress’ intent in 1993, and as evidence of post-enactment non-amendment might depend on the likelihood that Congress was aware of it.  Ultimately, its weight would probably turn on how much one deferred to executive branch interpretation. 

    Two other indicia that might be more probative.  First, Reagan’s original transmittal to the Senate discussed common law defenses and how they fit with the negotiating history and the intent requirement — and, interestingly, proposed an understanding that the defenses remained viable that was later dropped. 

    Second, the State Department reports do tend to reinforce the absence of such defenses under the Convention itself . . .  which in turn seems to be a sufficient basis for invoking Charming Betsy. 

    I don’t know if these are addressed in the memo, but I also don’t know whether there is good authority on how they are to be reconciled with lenity, etc.

  11. Prof. Heller, how do you react to the Kopel (and OLC) argument that the “enhanced interrogation techniques” fail to amount to torture but “only” to “inhuman and degrading” and that inflicting “inhuman and degrading” treatment is not covered by US criminal law?

    And while we’re at it: doesn’t “cruel and unusual” has the same ring to it as “inhuman and degrading”?

  12. BTW, Prof. Orin Kerr has a posted a response to Mr. Kopel’s post at VC.

  13. So John Yoo cites two law professors, one from Harvard, and that is dishonest.  Ward Churchill cites …. well himself basically, but that is OK?
    Anyway, Professor Heller I have a question for you.  In light of your critique of Professor Yoo’s citing practices, would you find it dishonest if a law professor, appearing before the ICJ, cites a legal article written by one of his students under the professor’s extensive guidance as evidence under Art. 38(1)(d) of the ICJ rules? 

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