A Memo on Torture to John Yoo

The former Bush administration official continues to defend the indefensible: his authorization of a disastrous policy of abuse

Whether torture helped lead to the killing of Osama bin Laden or not, the beating of John Yoo's tell-tale heart has compelled him to speak. His preemptive rush, in a recent op-ed article for the Wall Street Journal, to vindicate the Bush administration's torture policies that he and Jay Bybee created betrays his guilt for approving one of the most reprehensible policies in US history - a policy of systematic torture that not only failed to provide actionable intelligence, but undermined the security of the United States.

In the infamous torture memos of 2002, Yoo and Bybee, authorized "enhanced interrogation" techniques (EITs), acts previously recognized by the US as torture - and the same torture methods used on US soldiers to obtain false confessions during the Korean war. In 131 pages of memos, the two justice department legal counsels redefined torture in a manner that required medical monitoring of all EITs, but failed to provide any meaningful provisions to detect medical evidence of torture as defined by them. Moreover, their "good faith" defence against criminal liability for torture rested on two presumptions, that interrogators would not exceed the severe physical and severe and prolonged mental pain thresholds for torture as defined by Yoo and Bybee, and, even if they did, that it would not constitute torture unless these physical and psychological harms were the precise objectives of the interrogators.

For more than 20 years, I have been documenting medical evidence of torture and testifying as a medical expert in courts of law. As the principle author of the UN Manual on the Effective Investigation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol), I am well aware of the international standards of assessing medical evidence of torture. I have served as a public member of US human rights delegations and criticized other governments for the very practices that John Yoo authorized and continues to defend. Over the past several years, I have been called upon to serve as a medical expert in a number of Guantanamo cases and have evaluated, at first hand, the physical and psychological evidence of torture alleged by detainees.

In each of the cases that I have evaluated, the physical and psychological evidence of torture is consistent with the UN Convention Against Torture's definition of torture - as well as Yoo and Bybee's definition of torture. In some cases, Yoo's condition of "specific intent" to commit acts of torture is clear from declassified interrogation logs, which reveal systematic and prolonged efforts to induce psychological states of debility, dependence and dread, euphemistically referred to as ''ego down", ''futility'' and ''fear up harsh.". The fact that Yoo and Bybee raised the thresholds for physical and mental pain of torture without any provisions to assess possible evidence of torture suggests criminal negligence and possibly the intent to commit and conceal a systematic policy of torture.

Former assistant attorney general Yoo not only wants to conceal the evidence of the torture that he authorized; he wants us to believe that his torture policy was useful in fighting terrorism. Unfortunately, he fails to mention any of the negative consequences of the policies. For starters, the US invasion of Iraq was justified, in part, on the basis of the false confession of Ibn al-Shaykh al-Libi who, under pain of torture, confessed to knowledge of weapons of mass destruction in Iraq. Torture not only aided in the justification of the Iraq war, which resulted in more than 4,000 US casualties, hundreds of thousands of Iraqi casualties, and costs in excess of $1tn; the subsequent occupation served as the primary recruiting tool for al-Qaida in Iraq.

US torture practices have also jeopardized the effective legal prosecutions of suspected terrorists, which has led, in part, to the Obama administration being forced to revert to holding the trials of the alleged 9/11 conspirators in military tribunals rather than civilian courts; torture has also placed US soldiers at greater risk of harm, and undermined the capacity for the US to hold other countries accountable for human rights abuses.

The reason why torture is universally prohibited in international and domestic law the world over, however, is not because it is ineffective or counterproductive (though it is). Torture has been universally prohibited because in the aftermath of the second world war, the nations of the world agreed, under the leadership of the United States, that respect for basic human dignity required the absolute prohibition of torture under any circumstance.

The acts of torture that John Yoo and other Bush administration officials so proudly defend are nothing less than war crimes that, in the absence of accountability, continue to undermine the United States' claim to respect the rule of law.

© 2023 The Guardian