John Yoo, the author of one of the infamous Aug. 1, 2002, �torture�
memos that formed the legal basis for so-called �enhanced� interrogation
techniques against high-level terrorist detainees, used a statute governing
health benefits when he provided the White House with a legal opinion defining
Yoo�s legal opinion, which was signed by Jay Bybee, the
former head of the Department of Justice�s Office of Legal Counsel (OLC),
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.
Waterboarding, a brutal and painful technique in which a
prisoner believes he is drowning, therefore, was not considered to be torture.
Jack Goldsmith, who succeeded Bybee at OLC, said that Yoo, a
former OLC attorney who now teaches at Chapman University in Orange, Calif.,
arrived at that definition by relying on a statute written in 2000 related to
�That statute 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 his book, The
�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.�
In his book, War
By Other Means, Yoo blamed Congress for forcing him to rely upon an
obscure 2000 health benefits statute to narrow the definition of torture in a
way that permitted techniques such as waterboarding.
In passing an anti-torture law, Congress only prohibited �severe [italics] physical or mental pain
or suffering,� Yoo wrote. �The ban on torture does not prohibit any [italics] pain or suffering whether
physical or mental, only severe acts. Congress did not define severe . . . OLC
interpreted �severe� as a level of pain �equivalent in intensity to the pain
accompanying serious physical injury, such as death, organ failure, or serious
impairment of body functions.
�OLC�s first 2002 definition did not make up this definition
out of thin air. It applied a standard technique used to interpret ambiguous
phrases in law. When Congress does not define its terms, courts commonly look
in the United States Code for the use of similar language. The only other place
where similar words appear is in a law defining health benefits for emergency
medical conditions, which are defined as severe symptoms, including �severe
pain� where an individual�s health is placed �in serious jeopardy,� �serious
impairment to bodily functions,� or �serious dysfunction of any bodily organ or
Goldsmith claims that after reviewing various arguments and
opinions in Yoo�s August 2002 �torture memo,� particularly �any effort by
Congress to regulate the interrogation of battlefield detainees would violate
the Constitution�s sole vesting of the Commander-in-Chief authority in the
president, has no foundation in prior OLC opinions, or in judicial decisions,
or in any other source of law.�
Goldsmith, who was tapped to head the OLC in October 2003,
determined after eight weeks as head of OLC that Yoo�s �torture memo� was �legally
flawed,� sloppily written, and called into question whether the White House was
provided with sound legal advice.
That conclusion, along with Yoo�s reliance on the health
benefits statute to form a legal opinion regarding torture, may be one of the
sharp criticisms of an ethics report by the DOJ�s Office of Professional
Responsibility (OPR), an internal DOJ watchdog that probed whether the legal
work Yoo, Bybee and former OLC acting chief Steven Bradbury conducted for the
White House violated �professional standards.�
�On an issue that demanded the greatest of care, OLC�s
analysis of the law of torture in the Aug. 1, 2002, opinion and the March 2003
opinion was legally flawed, tendentious in substance and tone, and overbroad
and thus largely unnecessary,� Goldsmith wrote in his book.
When he arrived at the OLC in October 2003, Goldsmith was
unaware that the CIA had, for more than a year, used interrogation methods to
extract information from so-called high-level detainees held at secret prisons
in European countries that, before 9/11, would have most certainly been
construed as violating the United Nations Convention Against Torture, a treaty
signed by the U.S. but one that Congress had made unenforceable in U.S. courts.
Goldsmith, who had worked at the Pentagon�s office of
general counsel, may appear to be one of a handful of individuals who
challenged the White House on matters of national security matters but he was
still a strong supporter of many of the administration�s policies.
A law professor and scholar on international law who
graduated from Oxford and Yale universities, Goldsmith held the view that
international laws that prohibited human rights abuses should not be considered
as binding by courts in the United States.
Goldsmith�s interpretation of international laws, as well as
his staunch conservative credentials, played a crucial role in his transition
from the Pentagon�s office of general counsel to director of the OLC at the
Upon his arrival at the DOJ, Goldsmith inherited a stack of
legal opinions, some written by Yoo, whom he counts as a close friend.
Yoo�s legal opinions virtually gave President Bush
unilateral authority to launch preemptive military strikes against any regime
suspected of having ties to terrorist groups, provided Bush with the power to
begin a covert domestic surveillance program, and authorized the president to
allow CIA agents to interrogate alleged terrorist detainees using brutal
methods of interrogation as long as it didn�t result in death or maiming of the
White House officials, including Vice President Dick Cheney,
and his legal counsel, David Addington, believed that Goldsmith would
reauthorize Yoo�s legal opinions after arriving at the DOJ so the wide range of
classified programs would continue without interruption.
But eight weeks after he settled into his new job Goldsmith
said, according to his book that he worried �about the possibility of excessive
interrogation� being undertaken by CIA agents after reviewing some of the legal
documents written by his predecessors.
Patrick Philbin, at the time a deputy at the OLC who had
provided the White House with legal advice following Yoo�s departure from the
office, advised Goldsmith soon after he arrived at OLC that he was working to
correct one such OLC opinion written by Yoo that he believed was �out there.�
The legal opinion that so worried Philbin was Yoo�s �Standards
of Conduct for Interrogation,� which formed the legal basis for the Bush
administration�s so-called �enhanced� interrogation program.
Another opinion written by Yoo on March 14, 2003, for Jim
Haynes, Goldsmith�s former boss at the Pentagon, under the heading �Military
Interrogation of Alien Unlawful Combatants Held Outside the United States,�
provided the Department of Defense, specifically former Secretary of Defense
Donald Rumsfeld, with authority to use the same interrogation techniques
against high-level prisoners held at Guantanamo Bay and other facilities
maintained under the DOD�s control. That opinion remains classified.
According to Goldsmith, �the primary legal issue in both
opinions was the effect of a 1994 law that implemented a global treaty banning
torture and that made it a crime, potentially punishable by death, to commit
�Congress defined the prohibition on torture very narrowly
to ban only the most extreme of acts and to preserve many loopholes,� Goldsmith
wrote in his book.
It did not criminalize cruel, inhuman, and degrading
treatment (something prohibited by international law) and did not even
criminalize all acts of physical or mental pain or suffering, but rather only
those acts �specifically intended� to cause �severe� physical pain or suffering
or �prolonged mental harm.�
Both of Yoo�s opinions concluded that the laws governing
torture violated President Bush�s commander-in-chief powers under the
Constitution because it prevented him �from gaining the intelligence he believes
necessary to prevent attacks upon the United States.�
Goldsmith said that even though, �ironically,� Yoo relied on
a health benefits statute to write his legal opinion, these and �other
questionable statutory interpretations, taken alone, were not enough to cause
me to withdraw and replace the interrogation opinions.�
�OLC has a powerful tradition of adhering to its past
opinions, even when a head of the office concludes they are wrong,� he wrote in
Still, Goldsmith �decided in December 2003 that opinions
written nine and sixteen months earlier by my Bush administration predecessors
must be withdrawn, corrected, and replaced,� Goldsmith wrote in his book.
�I reached this decision, and had begun to act on it, before
I knew anything about interrogation abuses. I did so because the opinions�
errors of statutory interpretation combined with many other elements to make
them unusually worrisome.�
Leopold is the author of �News Junkie,� a memoir. Visit
for a preview. His new website is The
Public Record where this article first appeared.