The US War Crimes Act, and 18 USC sections 818 and 3231, punish
torture, willfully causing great suffering or serious injury to body or
health, and inhuman, humiliating or degrading treatment.
The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.
The Constitution gives Congress the power to make laws and the
President the duty to enforce them. Yet Bush, relying on memos by
lawyers including John Yoo, announced the Geneva Conventions did not
apply to alleged Taliban and Al Qaeda members. But torture and inhumane
treatment are never allowed under our laws.
Justice Department lawyers wrote memos at the request of Bush officials
to insulate them from prosecution for torture. In memos dated August 1,
2002 and March 18, 2003, John Yoo wrote the DOJ would not enforce U.S.
laws against torture, assault, maiming and stalking, in the detention
and interrogation of enemy combatants.
The maiming statute makes it a crime for someone "with the intent to
torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or
lip, or cut out or disable the tongue, or put out or destroy an eye, or
cut off or disable a limb, or any member of another person” or throw or
pour upon another person any scalding water, corrosive acid, or caustic
substance.
Yoo said, "just because the statute says — that doesn't mean you have
to do it." In a debate with Notre Dame Professor Doug Cassell, Yoo said
there is no treaty that prohibits the President from torturing someone
by crushing the testicles of the person's child. It depends on the
President's motive, Yoo said, notwithstanding the absolute prohibition
on torture.
Yoo twisted the law and redefined torture much more narrowly than the
Torture Convention and the Torture Statute. Under Yoo's definition, you
have to nearly kill the person to constitute torture.
Yoo wrote that self-defense or necessity could be defenses to war
crimes prosecutions, notwithstanding the Torture Convention's absolute
prohibition against torture in all circumstances.
After the August 1, 2002 memo was made public, the DOJ knew it was
indefensible. It was withdrawn as of June 1, 2004, and a new opinion,
dated December 30, 2004, specifically rejected Yoo’s definition of
torture, and admitted that a defendant’s motives to protect national
security won’t shield him from prosecution. The rescission of the prior
memo is an admission by the DOJ that the legal reasoning was wrong. But
for the 22 months it was in effect, it sanctioned and caused the
torture of myriad prisoners.
Yoo and other DOJ lawyers were part of a common plan to violate U.S.
and international laws outlawing torture. It was reasonably foreseeable
their advice would result in great physical or mental harm or death to
many detainees. Indeed, more than 100 have died, many from torture. Yoo
admitted recently he knew interrogators would take action based on what
he advised.
Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George
Tenet, and John Ashcroft met in the White House and micromanaged the
torture by approving specific torture techniques such as waterboarding.
Bush admitted he knew and approved of their actions.
They are all liable under the War Crimes Act and the Torture Statute.
Under the doctrine of command responsibility, commanders, all the way
up the chain of command to the commander in chief, are liable for war
crimes if they knew or should have known their subordinates would
commit them, and they did nothing to stop or prevent it. The Bush
officials ordered the torture after seeking legal cover from their
lawyers.
The President can no more order the commission of torture than he can
order the commission of genocide, or establish a system of slavery, or
wage a war of aggression.
A Select Committee of Congress should launch an immediate and thorough
investigation of the circumstances under which torture was authorized
and rationalized. The high officials of our government, and the lawyers
who advised them, should be investigated and prosecuted by a Special
Prosecutor, independent of the Justice Department, for their roles in
misusing the rule of law and legal analysis to justify torture and
other crimes in flagrant violation of our laws.
For the complete testimony,
see here.
Writings 
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