IMPEACH BUSH

Guantanamo Bay has just marked its fifth anniversary. John Yoo was instrumental in setting up the prison camp that has been widely condemned. (The normally solidly pro-American Daily Mail newspaper in England, for example, has called it "the sort of show that once only dictators like Joseph Stalin and Chairman Mao knew how to put on.")

Yet Yoo's infamy in America derives less from clearing the legal way for Guantanamo than from being the author of the "torture memo," a legal opinion filed on Aug. 2, 2002, by the Office of Legal Counsel, a section of the U.S. Department of Justice. The memo examined what methods of inflicting pain and suffering constitute torture, and whether the U.S. president can order torture if he thinks it necessary.

Yoo's memo was leaked to the press in the summer of 2004, in the aftermath of the publication of pictures of U.S. soldiers torturing Iraqi detainees inside Abu Ghraib prison. Overnight, he became a celebrity - but for all the wrong reasons. He was held personally responsible for Abu Ghraib's horrors: The disgusting behaviour of U.S. service personnel was seen as the bottom of the slippery slope down which Yoo had started America's military sliding when he wrote the torture memo.

"That was totally absurd," he told me when we meet for lunch in a restaurant opposite his office at the Boalt School of Law in Berkeley, Calif. "Two bipartisan congressional reports and several military investigations showed that the Pentagon hadn't even read the memo. Disgraceful behaviour of the kind which took place at Abu Ghraib had nothing to do with interrogation policy. Similar things have happened in practically every war. What was different was that this time they had cameras on their cellphones to photograph it. ... But the idea that what went on in Abu Ghraib would never have happened without that memo is just silly."

That, however, hasn't stopped many people from believing it. Various distinguished lawyers and professors have called Yoo's advice in the torture memo "disgusting," "unethical" and "a disgrace to our profession" - and that's without explicitly connecting it to Abu Ghraib. Others want Yoo indicted as a war criminal.

Even the Bush administration has disowned him: The OLC issued a subsequent opinion that, it stated, overturned his original advice. Yoo had opined that the president had the power to order torture. The new memo emphatically insists he does not.

Given his reputation, I was a little nervous about meeting John Yoo. I half-expected to encounter the kind of man who bites the head off a chicken each morning, and who has electrodes at the ready in his office. In reality, the man is nothing like the bloodthirsty sadist he is depicted as being. Yoo is gentle and reticent, and listens without interrupting. He's polite, courteous and not yet 40. He gives the impression of being a conscientious academic eager to find out what the law is and to ensure it is never flouted.

Flouting the law is, however, precisely what he stands accused of doing by writing the torture memo. "I reject that criticism totally," he said. "Everything I did was carefully crafted to make sure that it was consistent with the existing legislation. My obligation was to make sure that what the president did was lawful, and I took the obligation very seriously."

Still, it is difficult to read that memo without being shocked by its conclusions. It states, for instance, that "acts must be of an extreme nature to rise to the level of torture" (within the meaning of the Convention Against Torture as ratified by Congress). "The infliction of pain or suffering ... is insufficient to amount to torture." "Pain or suffering must be severe." "To amount to torture, an act must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure or even death."

The memo gives examples of some of the activities that count as torture: forcing someone to play Russian roulette, beating him until he goes into cardiac arrest, applying electric shocks to the genitalia, rape or sexual assault. The memo also gives examples of forms of treatment Yoo thinks do not constitute torture - among them are kicking someone, forcing him to stand against a wall, subjecting him to noise and depriving him of sleep. And he provides the legal precedents to back up his case: not just U.S. statutes but also judgments from the European Court.

It is all very specific, and very unpleasant. Even if he's right about what U.S. law permits, wouldn't it just have been better left unsaid? "That was simply not an option," Yoo said. "The CIA wanted - needed - a definitive answer to the question: how far can we go? They had specifically requested a legal opinion. They had captured senior Al-Qa'ida operatives who were not responding to being asked questions politely. CIA officers needed to know what, legally, they were entitled to do to them to get them to talk. They knew these guys had information on what Al-Qa'ida was planning. If the CIA could get that information, they could save lives. But they also wanted to be sure they would not end up going to prison for doing so." That's why they asked the OLC for answers - and in 2002 the OLC turned out to be represented by John Yoo.

Yoo's answer to "How far can we go?" turned out to be indistinguishable from "as far as the president wants to." The most controversial part of Yoo's advice was that, as commander-in-chief in war, the U.S. constitution allows the president to be the judge of what is and what is not "necessary" to prosecute war successfully. That's the claim the OLC later explicitly disavowed.

Yoo's theory of the president's practically untrammelled powers in war is, to put it mildly, not the orthodox position on what the constitution permits. "Well, it may not be orthodox," Yoo replied with a smile, "but it is in fact the way presidents have behaved during wartime, and it is supported by legal precedent. Generally, the courts have not tried to interfere with the president's power to conduct war ... I think the OLC's reversal was pure politics. The administration just lost the courage of its convictions."

Bitterness at the OLC's very public dismissal of his original opinion is tempered by Yoo's conviction that, in fact, it does not change anything in practice; he is convinced the new opinion does not alter his original advice on what methods of interrogation are permitted. "If you look carefully," he contends, "the same sorts of thing are legal in that opinion as in mine."

You mean, I ask, that they are said to be legal because it is decided they don't inflict the level of pain required to count as torture? "Correct," Yoo answered. "There's a footnote in the new OLC memo which states that explicitly. I know that the new advice hasn't made any difference to what the CIA does. Nor, incidentally, has the McCain Act." (This is the legislation, sponsored by Senator John McCain, that explicitly prohibits U.S. officials from using torture.)

That act changes the definition of torture from the infliction of "severe" pain to the infliction of "serious" pain. It doesn't, however, define what serious pain is

"Does water-boarding (inducing the perception of drowning in someone to make him talk) inflict serious pain?' Yoo asks. "I doubt that the CIA thinks that it does ... or that it is going to stop using the technique, if the stakes are high enough." So despite the new law, the old tactics will be available? "I think so. And more important, so do they ..."

It would be wrong to say Yoo is pleased about that situation. But keeping the option of "inflicting pain" available is, he insists, better than

the alternative, which is banning it absolutely. He remains convinced there are situations when torture is justified.

"No question about it," he said. "Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?"

Yoo said however much we want to, we can't duck that dilemma: As Al-Qa'ida acquires nuclear, chemical, biological weapons, confronting it is inevitable. "What changed on Sept. 11?" he asks. "We went from peace to war, that's what changed. We can't fight the war as if it were a law-enforcement issue of the kind the courts were designed to deal with. We want to prevent another mass attack - not punish the perpetrators after thousands of people have died."

To Yoo, the reality of the war against Al-Qa'ida and its affiliates is what justifies the extraordinary steps the U.S.administration has taken: Guantanamo, indefinite detention without trial, even targeted assassination (he wrote memos justifying that, too) and torture.

To his opponents, however, his insistence America is at war is just a fig leaf to justify an unprecedented assault on human rights and civil liberties. There hasn't been an attack on U.S. soil since 9/11 - something he attributes to the success of the policies he helped to craft in preventing one. His critics, of course, maintain it's nothing to do with those policies. Rather, it's proof there is no war.

"Well, Al-Qa'ida certainly think they're at war with us!" he observed. "I wonder what those who deny we're at war will say when there is another horrendous terrorist attack on the U.S.?"

If and when that happens, there will be a different president in the White House and a different team giving him advice.

But you can be sure of one thing: whoever is in charge will, in the aftermath of a new 9/11, take a very close look at the legal opinions that have made John Yoo a pariah.

© The Gazette (Montreal) 2007