No Home in this World: The Case against John Yoo before the International Criminal Court

Former Office of Legal Counsel lawyer John Yoo’s criminal liability for the U.S. Torture Program has been a topic of debate ever since the so-called ‘Torture Memos’ came to light. The debate has primarily focused on the criminal case against Yoo under domestic U.S. law or under abstract notions of ‘international law’. In light of the International Criminal Court’s investigation into the situation in Afghanistan there is reason to hope for a possible indictment of Yoo. This article fills in a gap in the literature surrounding Yoo’s culpability by straightforwardly delineating the prima facie case against John Yoo under the Rome Statute.

Personality Disruption as Mental Torture

This chapter analyzes the interrogation program employed by the CIA on high-value detainees (the so-called Rendition, Detention, and Interrogation or RDI program), and argues that it constitutes mental torture under U.S. law. By extension, the argument applies to any use of similar interrogation methods. Specifically, we show through detailed textual and historical analysis that the RDI program of inducing “learned helplessness” violates the Torture Acts’ prohibition on inflicting prolonged mental harm by procedures “calculated to disrupt profoundly the human personality.” The chapter accomplishes four main things. First, it demonstrates a connection between the RDI program and previous decades’ interrogation research sponsored by the CIA. The program was not an improvisation devised by contract psychologists because the Agency lacked expertise (one of its public claims). Second, it demonstrates that the Torture Statute prohibits the methods devised through this research. Third, it demonstrates the need for a fundamental shift in the way both lawyers and commentators talk about the RDI program: de-emphasizing the short list of “enhanced interrogation techniques” approved in the well-known “torture memos,” and emphasizing instead the larger program of round-the-clock abuse aiming at personality disruption. Finally, it documents these claims with information mined from tens of thousands of pages of declassified government sources.

Rhetoric, Torture, and Surveillance Time

Relying on select US government Torture Memos, this article develops the term “surveillance time” to highlight the ways in which surveillance practices, in this case within the material confines of post-9/11 detention centers, come to threaten humans’ subjectivities through temporal disruption and manipulation. While surveillance has lately been understood in digital terms, such as in corporations’ data-mining practices and in technologies like facial-recognition software, we should not neglect its material, embodied dimensions. Surveillance time ultimately asks us to reconsider how monitoring and information-harvesting practices blur the boundaries between human bodies and data. Attention to the relationship between torture and surveillance also opens up new possibilities for understanding the now-ubiquitous monitoring strategies integrated into everyday life.

Torture

Despite its universal and absolute prohibition in international human rights and humanitarian law, torture has persisted even in liberal democracies. This chapter traces how changing national security legal cultures have shaped justifications for torture in the United States, culminating in an extensive torture program in the global war on terror. A culture of exception helped legitimize slave torture, lynching, and colonial torture through much of the United States’ early history, while a culture of secrecy facilitated covert and proxy torture during the Cold War. After 9/11, American authorities operated in a culture of legal rationalization. Rather than suspend or ignore the torture prohibition, the Bush administration sought legal cover for torture. As evidenced by the torture memos, lawyers reframed practices such as waterboarding as lawful enhanced interrogation techniques. These attempts to construct the plausible legality of torture effectively immunized Americans from prosecution for grave human rights violations.

The Rule of Law and Legal-Process Reasons in Attorney Advising

This is an intervention in long-standing debates in the philosophy of law and the theory of professional ethics. In jurisprudential terms, it elaborates on H.L.A. Hart’s concept of the internal point of view, which is the perspective of one who views the law as creating obligations, not merely affecting one’s prudential calculations. In other words, Hart’s idea is that the law must be capable of normativity. Hart limited this conceptual requirement to judges, who are obligated to take the internal point of view, leaving a deeply important open question concerning the attitude that citizens and their advisors must take with respect to the law. The argument in this Article is that it is a constitutive principle of the professional obligations of lawyers that they regard the law from the internal point of view. From this obligation flow further, more specific duties of good faith in interpretation of the law. The Article therefore connects scholarship on the nature of law with more practical questions concerning the duties of lawyers advising clients. It provides an analytically rigorous approach to evaluating the conduct of lawyers in high-profile scandals such the Panama Papers revelations, the so-called torture memos prepared by lawyers in the Bush Administration, and Acting Attorney General Rod Rosenstein’s memo explaining the firing of FBI Director James Comey. The position defended here differs from both the Nineteenth Century "wise counselor" conception of lawyer professionalism and the standard conception of legal ethics as "zealous advocacy within the bounds of the law." It is in some ways an elaboration on some of my previous scholarship on legal ethics and interpretation of law, but is grounded much more explicitly not only in Hart's notion of the internal point of view but - perhaps surprisingly - also in Lon Fuller's insight that law is a purposive activity characterized by giving reasons of a certain type in justification of one's actions.

Definition of Torture in US Law

In the light of the US Senate Intelligence Committee Report on the Central Intelligence Agency’s detention and interrogation program confirming the use of “enhanced interrogation techniques” to induce “learned helplessness” in detainees, this chapter reviews the scientific basis for the US definition of torture and its interpretation in the “Torture Memos.” These memoranda clearly indicate that “enhanced interrogation techniques” are designed for use in combination with specific intent to induce learned helplessness. Abundant research evidence shows that learned helplessness is mental harm that is severe enough to qualify as torture even by US standards. Although the US definition of torture seems to create potential loopholes for impunity, it suffers from certain logical inconsistencies, scientifically unfounded assumptions, and perhaps even “loopholes” that may well render legal cover for use of “enhanced interrogation techniques” difficult, if not impossible—at least not possible in a way that can be justified by logical reasoning or scientific evidence.

The Cumulative Effect

This chapter demonstrates how the US government selectively manipulated the medical and health literatures after the attacks of September 11, 2001 to justify the torture and cruel, inhuman, or degrading treatment of detainees held in US custody. The authors analyze the Department of Justice Office of Legal Counsel’s “Torture Memos” to illustrate the ways in which governments can attempt to circumvent the protections offered by existing definitions of torture, even while claiming to operate within legal limits. The authors offer a stark warning about the ways in which research findings can be perverted—and contradicting studies ignored—to justify governments’ policy aims when those aims conflict with legal constraints.