Academic journal article Duke Journal of Comparative & International Law

The Torture Lawyers

Academic journal article Duke Journal of Comparative & International Law

The Torture Lawyers

Article excerpt

INTRODUCTION

Some truths are inconvenient; some are stranger than fiction. This one might be characterized as both. (1) This is the true story of how, in the months following the attacks of 9/11, the legal policy of the U.S. government with respect to the war on terrorism was hijacked and dictated by a cabal of four highly placed government lawyers who called themselves the "War Council." (2) Together, they produced a series of legal memoranda which deliberately ignored adverse precedent, misrepresented legal authority, and were written to support a pre-ordained result, namely to "eliminate any hurdles posed by the torture law." (3)

The looming presence behind the group was Vice President Dick Cheney, who was a strong proponent of the principle Inter Arma Enim Silent Leges (in times of war the law must be silent). He believed that the president had to be unshackled from the constraints of international law in order to successfully combat the new terrorist threat. (4) As he explained, "We also have to work through sort of the dark side, if you will.... It is a mean, nasty, dangerous, dirty business out there, and we have to operate in that arena." (5)

The self-anointed "War Council" in turn was led by Vice President Cheney's chief counsel and trusted lieutenant, David Addington, about whom it was said, "if you favored international law, you were in danger of being called 'soft on terrorism.'" (6) Addington played a large role in shaping the content of the torture memoranda. (7) The second dominant figure was Jim Haynes, the chief counsel of the Department of Defense--a political appointee who had served as best man at Addington's wedding. (8) The third figure in this group was White House Chief Counsel, Alberto Gonzales, who famously declared after the 2001 U.S. invasion of Afghanistan that the Geneva Conventions were "quaint" and outmoded and did not apply to this new war on terror. (9)

But the most important member of all turned out to be a young Berkeley law professor named John Yoo. (10) Like the other members of the "War Council," Yoo "defined himself as a partisan Republican" who was devoted to the political success of his party and president. (11) Yoo was brought on board to serve as deputy head of the Department of Justice's Office of Legal Counsel ("OLC"), a government office with extraordinary power to issue memoranda interpreting the government's requirements under the U.S. Constitution and federal statutes. Yoo had come to the White House's attention because he had authored a series of law review articles arguing for near limitless powers of the presidency during crisis. (12) He was a "true believer" in his client's cause, (13) and a prolific writer; and it was his work product that would in a few years garner the mantle, "White House Torture Memos." (14)

This article recounts the story about how these four individuals intentionally cut off the government's primary experts on the Geneva Conventions, the Torture Convention, and customary international law from the decision making process. In doing so, they presented a one-sided and distorted view of U.S. obligations under international law that led to a widespread government policy and practice of torture. It also reveals how a trio of important Supreme Court precedents disrupted these plans, and ultimately swung the balance back in favor of compliance with international law.

The information relied on for this article comes from the findings of the bipartisan Senate Armed Service Committee report following extensive hearings into the matter in the summer and fall of 2008; (15) the July 2009 Department of Justice Ethics Probe whose conclusions were made public in February 2010; (16) the personal recollections of two of the major players in this saga--Jack Goldsmith (17) and John Yoo (18)--as contained in their memoirs; the reflections of William Taft and John Bellinger--the two State Department Legal Advisers who were in office during the period of the "Torture Memos"; and in limited instances other first-person accounts recorded by scholars. …

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