Turning the Torture Discussion into a Non-Discussion

The key distortion in the above statement is that John Yoo, in the article linked, quite specifically distinguishes between the policy itself and incidents that are reported to have occurred in the course of implementing it. The distinction is regularly ignored by critics of the CIA and the Bush Administration, no matter how prominently would-be defenders of the CIA, the Bush Administration, or both try to feature it.

To illustrate the difference, one could imagine a policy openly committed to the idea of torture – perhaps a “torture warrants” policy of the sort once proposed by Alan Dershowitz – that was not ever actually implemented for lack of torturable captives or captives who fulfilled its requirements. It is also not hard to imagine a policy meant to prevent torture under a broad definition that included all so-called enhanced interrogation techniques, and that strove to err on the side of non-aggressive interrogation, but that still produced torture or put individuals in a position to engage in torture (especially as broadly defined…): Arguably, we have had just such a policy or set of anti-torture or non-torture policies, and just such a set of torturous results, since long before the Bush War on Terror. Along parallel lines, unless the lines are in fact the same lines, some participants in the torture discussion have openly suggested, as an answer to the much-abused ticking time bomb dilemma, that torture should remain illegal, but that officials should be expected in extremis to break the law, then offer themselves to the mercy of whatever court. Dershowitz’s proposal was intended in part to respond to problems with this open hypocrisy proposal – which, as noted, may finally be indistinguishable from actual policy all along.

Perhaps the underlying argument against the “torture program” might be that excesses should have been expected, or that any policy intended to stretch the definition should have been expected to produce results that crossed over the line dividing “harsh but to be permitted” from “impermissible.” The rejoinder would be obvious, and at least subject to adjudication: that the goal, in this case a national security goal deemed vital, was important enough to override the probability of abuses, in quite the same way that under military logic we conventionally, if not always uncontroversially, discount “collateral damage” to civilians.

I do not mean to single “Zeddonymous” out. The above tweet could stand for countless pseudo-arguments put forth in the course of the torture discussion or non-discussion or pseudo-discussion. The same can be said for this other tweet on his time-line, also concerning John Yoo:

Zeddonymous is here converting a particular constitutional argument, a reference to a matter or question on which the Constitution in Yoo’s interpretation is effectively silent, into a positive statement that Yoo seems clearly not to have made or intended. The relevant portion of the linked entry reads as follows – a description of an exchange during a debate in Chicago in 2005:

“If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”, to which Yoo replied “No treaty.” [Notre Dame law professor] Cassel followed up with “Also no law by Congress—that is what you wrote in the August 2002 memo”, to which Yoo replied “I think it depends on why the President thinks he needs to do that.”

Yoo does not state that George W Bush actually had the legal authority specified. His point is that, for better or worse, the Constitution cannot pre-empt executive discretion. You may view the limitations to which Yoo refers as finally insuperable limitations of governance, or as flaws in the Constitution or the law, but, either way, Yoo was not the one proposing a “legal authority to sexually mutilate the children of terror suspects.” The notion occurred to his debate opponent, and Yoo was responding to a hypothetical.

I have followed Zeddonymous long enough to suspect that on some level he knows exactly what he is doing, and anyway that he is quite capable of understanding it. Like many others, however, perhaps like all of us sooner or later, he seems to prefer to set aside the philosophical difficulty, and instead seek to exercise an influence on the course of political determinations that have to be made even in the absence of a coherent or self-consistent rationale – in fact another version of the position that Yoo has just described. The danger for torture opponents in accepting collateral damage to the bases of public discussion, not least in the involvement of the proponents of public reason in habitual defamation of designated enemy political combatants, is the topic for a different discussion, or, more likely, non-discussion.

9 comments on “Turning the Torture Discussion into a Non-Discussion

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  1. I didn’t go to law school or anything, but I did pay attention in American History class. Article Six of the Constitution combined with the ratification of the UN Convention against Torture appear to contradict John Yoo’s answer.


    • There may be a theoretical problem even deeper, but just on the argument as you put it, when the US Senate ratified the the torture convention in 1994, it did so with a special exception: “.. nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-9&chapter=4&lang=en#12

      I’ll look up the full text of the “rider” later, but, even before we get to the self-defense exception, the legal definition of “torture,” and for that matter a potential constitutional crisis, you’d have to settle whether applying the treaty against the president’s C-in-C powers has already been implicitly “prohibited.”

      • To say a treaty ratified according to the constitution can’t contradict the constitution doesn’t really say anything. In the act of ratifying it they effectively said that it is compatible with the constitution, if it wasn’t then they had a simple solution: reject it. I suspect that rider was basically an empty sop to the type of people that shriek about the UN threatening “sovereignty” somehow.

        Practically speaking on the hypothetical, I don’t see how his response can be read as mere neutral acknowledgement. His position was to provide legal advise & opinion, by providing that opinion he was at the least saying that it was beneficial to his employer. There was no fence available to sit on, and considering what he has said since then I doubt that he was simply swallowing doubts of his own to please the boss at the time.

        As for “self-defense exception”… if you have someone restrained enough to be able to torture them & threaten to mutilate a family member of theirs, self-defense left the barn a long time ago. I’d be vastly more concerned about the right of self-defense for the innocent being threatened in the process.

        • What the Senate should or could have done, and what they did, are different things. Even without the Senate proviso, how the US does or doesn’t go about fulfilling general obligations under a treaty like that one is a complex topic even before we get to the constitutional questions.

          As for the hypothetical testicle-crushing, the example was offered, as I noted, by his debate opponent, and Yoo’s answer, in addition to being a theoretical statement rather than a policy statement, was not a statement to his employer or an official statement. At the time of the debate, Yoo’s employer was UC Berkeley – he left the Bush Administration in 2003.

          We could spend all day coming up with absurd or highly unlikely or evil things that a president could order that would not be technically unconstitutional, but that we do not think he or she should or would ever do.

          • The opponent was referring back to what he wrote while still with the administration though.

            Back to the Senate: the basic obligation to my understanding is that, according to the treaty, measures to discourage or prevent torture are to be taken up, torture is to be a criminal offense, and no exceptional circumstance can be invoked to excuse it. According to that understanding, those that carried out the program have committed crimes & those that ordered & agreed to the program are by admitting to & defending it confessing to a criminal conspiracy and should be charged.

            (That is, if treaties, constitutions, and “rule of law” actually mean anything. I know they don’t though, so not holding my breath.)

            The Exception discredits the basis for even tolerating the existence of the rule. It’s like if an opponent suddenly could change the rules during a game of chess if they thought they were losing too badly — might as well just flip the board & walk away.

            • Well, if you want to pursue the legal question relating to ratification, you should read this rather complicated entry:


              Note that, upon ratification, among the “numerous (A) reservations, (B) understandings and (C) declarations” was that the US is not required to act at all except in the sense of bringing its own laws into conformity with the convention: So, in short, not the understanding offered by Reagan that has been so widely circulated. The common statement that a treaty upon ratification becomes law of the land is a substantial oversimplification.

              (It does not surprise me that the ratification of a torture convention, and interpretation of that ratification, would be a tortu(r)ous process. Fits the torture discussion self-reflexivity theory I offered a while back: https://ckmacleod.com/2013/02/14/complexity-of-torture-the-sessions-resume/ )

              • If bringing the laws into conformity with the convention against torture doesn’t mean torture gets prosecuted, then what’s the point of agreeing to it beyond empty PR gesture? Either it’s binding or the whole thing is a lie.

                • There you go as usual with your perfect dichotomies… Given the continual and flagrant violation of the convention by numerous signatories, it always has had a whiff of “aspirationality” about it, though arguably some good has been done with it worldwide. Since you’re focusing on the US, being a ratified signatory had much to do with why the EIT program was constrained to the extent and in the way that it was, which is something that hyperbolic and distorted commentary tends to downplay or miss entirely – although, of course, no one can say what we or others might have done in the absence of the convention, or, alternatively, if faced with stronger or more well-defined laws and systems and precedents of enforcement in place.

  2. Given the continual and flagrant violation of the convention by numerous signatories

    They suck too, and anyone lecturing other countries about human rights that themselves violate such conventions should shut up until they stop violating it.


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