In Which Steven Pearlstein of the Washington Post Fisks Michael Steele and Fred Hiatt of the Washington Post
links for 2009-08-26

john Yoo: as Bad as We All Knew

The question of whether John Yoo has violated the University of California Faculty Code of Conduct with respect to (II) (B) "Types of Unacceptable Conduct: Violation of canons of intellectual honesty," does not admit of any answer other than "yes."

The latest example, via Smintheus:

unbossed.com » Another Bush administration legal fiction: [John Yoo] wrote an undated memo sometime before June 16, 2003 which... advanced a flagrantly false interpretation of the UN Convention against Torture.... Here is what the Helgerson report states the memo said about the UN Convention:

The analysis adds that "the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war."

The UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment says no such thing. The OLC/OGC lawyers evidently were insinuating that the Convention drew a very major distinction between the prohibitions against torture on the one hand, and against cruel, inhuman, or degrading treatment on the other. Article 2 of the Convention states explicitly that there are no circumstances that may be used to justify torture:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

It is true that the Convention does not repeat the Article 2 statement when it later discusses "cruel, inhuman, or degrading treatment". However that discussion (in Article 16) is extremely brief and to the point: that governments should prevent 'cruel etc. treatment' as they do torture and should give its victims the same legal recourse as victims of torture. There is no implication whatsoever in the Convention that "exigent circumstances" permit the use of cruel, inhuman, or degrading treatment...


Here is the Convention's sole discussion of other acts of cruel, inhuman or degrading treatment or punishment:

UN Convention Against Torture: Article 16: Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.

Here are the applications of Article 16 to Articles 10-13:

Article 10':Each State Party shall ensure that education and information regarding the prohibition against other forms of cruel, inhuman or degrading treatment or punishment are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.

Article 11': Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of other forms of cruel, inhuman or degrading treatment or punishment.

Article 12': Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of other forms of cruel, inhuman or degrading treatment or punishment has been committee in any territory under its jurisdiction.

Article 13': Each State Party shall ensure that any individual who alleges he has been subjected to other forms of cruel, inhuman or degrading treatment or punishment in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

http://www.aclu.org/torturefoia/released/082409/olcremand/2004olc17.pdf

Acadmic freedom is not promoted or vindicated by the retention of professors--like Yoo--whose conduct is unacceptable. That's what "unacceptable faculty conduct" means.

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