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The Torture Debate in America

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THE TORTURE DEBATE IN AMERICA

As a result of the work assembling the documents, memoranda, and reports that constitute the material in The Torture Papers questions were raised about the rationale underlying the Bush administration’s decision to condone the use of coercive interrogation techniques in the interrogation of detainees suspected of terrorist connections. The condoned use of torture in any society is questionable but its use by the United States, a liberal democracy that champions human rights and is a party to international conventions forbidding torture, has sparked an intense debate within America and across the world. The Torture Debate in America captures these arguments with essays from individuals in different disciplines. This volume contains essays covering all sides of the argument, from those who embrace the absolute prohibition of torture to those who see it as a viable option in the war on terror, and with relevant documents complementing the essays.

Karen J. Greenberg is the Executive Director of the Center on Law and Security at New York University School of Law. She is the co-editor of the recently published The Torture Papers: The Road to Abu Ghraib, editor of the forthcoming Al Qaeda Now, and editor of The NYU Review of Law and Security.





THE TORTURE DEBATE
IN AMERICA

Edited by
KAREN J. GREENBERG





CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
40 West 20th Street, New York, NY 10011-4211, USA

www.cambridge.org
Information on this title: www.cambridge.org/9780521857925

© Karen J. Greenberg

This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.

First published 2006

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication Data
The torture debate in America / edited by Karen J. Greenberg.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-521-85792-5 (hardback)
ISBN-10: 0-521-85792-9 (hardback)
ISBN-13: 978-0-521-67461-4 (pbk.)
ISBN-10: 0-521-67461-1 (pbk.)
1. Human rights – Government policy – United States. 2. Torture.
3. Political prisoners – Abuse of. 4. Military interrogation. 5. War on
Terrorism, 2001– . I. Greenberg, Karen J.
JC599.U5T665    2005
323.4′9–dc22    2005022921

ISBN-13 978-0-521-85792-5 hardback
ISBN-10 0-521-85792-9 hardback

ISBN-13 978-0-521-67461-4 paperback
ISBN-10 0-521-67461-1 paperback

Cambridge University Press has no responsibility for
the persistence or accuracy of URLs for external or
third-party Internet Web sites referred to in this publication
and does not guarantee that any content on such
Web sites is, or will remain, accurate or appropriate.





Contents

Acknowledgments page ix
List of Contributors xi
Introduction: The Rule of Law Finds Its Golem: Judicial Torture Then and Now 1
Karen J. Greenberg
THE ISSUES
    Torture: The Road to Abu Ghraib and Beyond 13
    Panel Discussion with Burt Neuborne, Dana Priest, Anthony Lewis, Joshua Dratel, Major Michael (Dan) Mori, and Stephen Gillers  
ESSAYS
Section One: Democracy, Terror and Torture  
1   Liberalism, Torture, and the Ticking Bomb 35
    David Luban  
2   How to Interrogate Terrorists 84
    Heather MacDonald  
3   Torture: Thinking about the Unthinkable 98
    Andrew C. McCarthy  
4   The Curious Debate 111
    Joshua Dratel  
5   Is Defiance of Law a Proof of Success? Magical Thinking in the War on Terror 118
    Stephen Holmes  
6   Through a Mirror, Darkly: Applying the Geneva Conventions to “A New Kind of Warfare” 136
    Scott Horton  
7   Speaking Law to Power: Lawyers and Torture 151
    Richard B. Bilder and Detlev F. Vagts  
8   Torture: An Interreligious Debate 162
    Joyce S. Dubensky and Rachel Lavery  
Section Two: On the Matter of Failed States, The Geneva Conventions, and International Law  
9   Unwise Counsel: The War on Terrorism and the Criminal Mistreatment of Detainees in U.S. Custody 183
    David W. Bowker  
10   Rethinking the Geneva Conventions 203
    Lee A. Casey and David B. Rivkin, Jr.  
11   If Afghanistan Has Failed, Then Afghanistan Is Dead: “Failed States” and the Inappropriate Substitution of Legal Conclusion for Political Description 214
    David D. Caron  
12   War Not Crime 223
    William H. Taft Ⅳ  
Section Three: On Torture  
13   Legal Ethics and Other Perspectives 229
    Jeffrey K. Shapiro  
14   Legal Ethics: A Debate 236
    Stephen Gillers  
15   The Lawyers Know Sin: Complicity in Torture 241
    Christopher Kutz  
16   Renouncing Torture 247
    Michael C. Dorf  
17   Reconciling Torture with Democracy 253
    Deborah Pearlstein  
18   Great Nations and Torture 256
    M. Cherif Bassiouni  
Section Four: Looking Forward  
19   Litigating Against Torture: The German Criminal Prosecution 261
    Michael Ratner and Peter Weiss  
20   Ugly Americans 267
    Noah Feldman  
RELEVANT DOCUMENTS
1   Taft–Haynes March 22, 2002 Memo Re: President’s Decision about Applicability of Geneva Conventions to al Qaeda and Taliban 283
    William Taft Ⅳ to William Haynes, March 22, 2002  
2   Bybee–Gonzales August 1, 2002 Memo Re: Standards of Conduct for Interrogation, aka the “Torture Memo” 317
    Jay Bybee to Alberto Gonzales, August 1, 2002  
3   Levin–Comey December 30, 2004 Memo Re: Legal Standards Applicable Under 18 U.S.C. Sec. 2340–2340A. 361
    Daniel Levin to James B. Comey, December 30, 2004  
4   JAG Memos Re: Recommendations of the Working Group to Assess the Legal, Policy and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism, February–March 2003. 377
    February 5, 2003, Jack Rives, Major General USAF Memo  
    February 6, 2003, Jack Rives Memo  
    February 6, 2003, Michael Lohr Memo for the GCAF  
    February 27, 2003, Kevin Sandkuhler Memo  
    March 3, 2003, Thomas Romig Memo for GCAF  
    March 13, 2003 (incorrectly dated 2002) Lohr Comments on March 6 Report  
AFTERTHOUGHT
To the American People: Report upon the Illegal Practices of the United States Department of Justice 393
Zechariah Chafee, Felix Frankfurter, Ernst Freund, Roscoe Pound, et al., May 1920  
Index 405




Acknowledgments

This book could not have been done without the advice and guidance of many. Marty Lederman kept constant and generous vigil on the torture debate that occurred and the documents that appeared around us as we assembled the essays. Francesca Laguardia provided wise counsel on the documents that underlay the debate. Gayle Horn shared her expertise on interrogation manuals and their usage.

   Kristin Henderson’s and Jonathan Voegele’s thoughtful editing made the book come to life. John Berger’s patience, encouragement and colleagueship made the work pleasurable as well as viable. The staff at the Center on Law and Security offered editing and assembling help.

   Last but by no means least, Stephen Holmes flooded me with ideas and materials, all the while keeping me steadily afloat.

   To all of them, my thanks.





Contributors

M. Cherif Bassiouni is Distinguished Research Professor of Law at DePaul University College of Law and President of the International Human Rights Law Institute. He is also President of the International Institute of Higher Studies in Criminal Sciences in Siracusa, Italy, as well as the Honorary President of the International Association of Penal Law, based in Paris, France, after having served as President and previously as Secretary-General for thirty years. Professor Bassiouni is the author of 24 and the editor of 44 books, and the author of 217 articles, mainly on international criminal law, comparative criminal law, and international human rights law.

Richard B. Bilder is the Foley & Lardner-Bascom Emeritus Professor of Law at the University of Wisconsin-Madison where he has taught particularly in the areas of international and foreign relations law. He served for some years as an attorney in the Office of Legal Adviser at the U.S. Department of State. Among other positions, Professor Bilder has served as Vice-President, Honorary Vice-President and Counselor of the American Society of International Law and as a member of the Board of Editors of the American Journal of International Law. He served as Chair of the International Courts Committee of the American Bar Association and Committee on Diplomatic Protection of the International Law Association. He was educated at Williams College and Harvard Law School, and was a Fulbright Scholar at England’s Cambridge University.

David W. Bowker is a counsel in the international litigation group at Wilmer Cutler Pickering Hale and Dorr LLP in New York. Before joining the firm, Mr. Bowker was an attorney-adviser for the law of armed conflict in the Office of the Legal Adviser at the U.S. Department of State. Mr. Bowker previously worked in the field of counterterrorism as a graduate intern for the National Security Council staff. He is an adjunct professor at the Benjamin N. Cardozo School of Law, where he teaches a course on international humanitarian law and the war on terrorism.

David D. Caron is the C. William Maxeiner Distinguished Professor of Law at the Boalt Hall School of Law at the University of California, Berkeley. He served as a legal assistant to Judges Richard Mosk and Charles Brower at the Iran-United States Claims Tribunal in The Hague. He was a senior research fellow at the Max Planck Institute for Comparative Public and International Law from 1985 to 1986, and served as director of studies (1987) and director of research (1995) at the Hague Academy of International Law. He is a member of the board of editors of the American Journal of International Law and received the 1991 Deak Prize of the American Society of International Law for outstanding scholarship by a younger academic. He presently serves as a member of the precedent panel of the U.N. Compensation Commission for claims arising out of the Gulf War and is also a member of the Department of State Advisory Committee on Public International Law.

Lee A. Casey is a partner in the law firm of Baker & Hostetler LLP, and serves as an expert member of the United Nations Sub-Commission on the Promotion and Protection of Human Rights. From 1986 to 1993, he served in various capacities in the federal government, including the Office of Legal Counsel from 1992–93 and the Office of Legal Policy from 1986–90 at the U.S. Department of Justice. He was Deputy Associate General Counsel of the U.S. Department of Energy from 1990 to 1992. Mr. Casey received his J.D. from the University of Michigan School of Law in 1982, and served as law clerk to the Hon. Alex Kozinski from 1984–85.

Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University and the author of dozens of scholarly articles on constitutional law and related subjects. He is the editor of and wrote the introduction to the book, Constitutional Law Stories (Foundation Press, 2004). With Laurence H. Tribe, Professor Dorf is the co-author of the book On Reading the Constitution. His bi-weekly column appears on the website writ.FindLaw.com. Professor Dorf is a graduate of Harvard College and Harvard Law School. Following law school, he was a law clerk for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit in Los Angeles and then for U.S. Supreme Court Justice Anthony Kennedy.

Joshua Dratel is a practicing attorney in New York City. He is President of the New York State Association of Criminal Defense Lawyers and serves on the Board of Directors of the National Association of Criminal Defense Lawyers. Along with Major Dan Mori, he is assisting in the defense of Australian detainee David Hicks. He also defended al Qaeda member Wadih el Hage after the bombings in Tanzania and Kenya. He has written articles on defending terrorism cases, including Ethical Issues in Defending a Terrorism Case: How Secrecy and Security Impair the Defense of a Terrorism Case and Ethical Issues in Defending a Terrorism Case: Stuck in the Middle. He is co-editor of The Torture Papers: The Road to Abu Ghraib. He received his B.A. from Columbia College and his law degree from Harvard Law School.

Joyce S. Dubensky is the Executive Director of the Tanenbaum Center for Interreligious Understanding. Before joining the Tanenbaum Center, Ms. Dubensky served as the national Director of Communications and, later, the Deputy Executive Director of a regional office of the National Conference for Community and Justice. An attorney, Ms. Dubensky founded the legal department at UJA-Federation of New York and served as its General Counsel for over a decade. Ms. Dubensky holds her J.D. from New York University School of Law, where she graduated with honors, and has her M.A. in American History (with an emphasis on Minority Studies) from Adelphi University. Currently, she serves on the Board of Advisors for the Center Against Violence in the Family.

Noah Feldman is professor of law at New York University School of Law. He served as senior advisor on constitutional law to the Coalition Provisional Authority in Iraq and as advisor to Iraqis involved in the constitutional process there. He is the author of What We Owe Iraq: War and the Ethics of Nation Building and After Jihad: America and the Struggle for Islamic Democracy. He received his A.B. summa cum laude from Harvard University. Selected as a Rhodes Scholar, he earned a doctorate in Islamic Thought from Oxford University and his J.D. from Yale Law School, after which he served as a law clerk to Justice David H. Souter of the U.S. Supreme Court.

Stephen Gillers is professor of law at New York University School of Law, where he served as Vice Dean from 1999–2004. He now holds the Emily Kempin chair. Professor Gillers has written widely on legal and judicial ethics, including in law reviews and the legal and popular press. He has taught legal ethics as a visitor at other law schools and has spoken on lawyer regulatory issues at federal and state judicial conferences, ABA conventions, state and local bar meetings nationwide, before Congress, at law firms and corporate law departments, and in law school lectureships. He is currently Chair (and since 2002 has been a member) of the American Bar Association’s Joint Committee on Lawyer Regulation. Following a clerkship with Chief Judge Gus J. Solomon in Federal District Court in Portland, Oregon, Professor Gillers practiced law in New York City before joining the NYU faculty.

Stephen Holmes is currently Walter E. Meyer Professor of Law at NYU School of Law. From 1979 to 1985 he taught at the Department of Government at Harvard University. From 1985 to 1997, he was Professor of Politics and Law at the Law School and Political Science Department of the University of Chicago. From 1997 to 2000, he was Professor of Politics at Princeton. He was the editor-in-chief of the East European Constitutional Review from 1993–2003. In 2003, he was selected as a Carnegie Scholar. His fields of specialization include the history of liberalism, the disappointments of democratization after communism, the Russian criminal justice system, the weaknesses of international criminal law, and the near-impossibility of combating terrorism within the limits of liberal constitutionalism.

Scott Horton is a partner of Patterson, Belknap, Webb and Tyler LLP. He is an Adjunct Professor at Columbia University School of Law and chairs the Committee on International Law of the Association of the Bar of the City of New York. He has served as an advisor for the Central Eurasia Project at the Open Society Institute, and Chair of the Advisory Board for the Eurasia Group. He is a Founding Trustee of the American University in Kyrgyzstan and President of the International League for Human Rights.

Christopher Kutz is Professor of Law in the Jurisprudence and Social Policy Program, Boalt Hall School of Law, U.C. Berkeley. He teaches moral, political, and legal philosophy, as well as criminal law, and is the author of Complicity: Ethics and Law for a Collective Age. His recent work includes articles on democratic theory, reparations, and non-uniformed combatancy.

Rachel Lavery is the Religious Affairs Researcher at the Tanenbaum Center for Interreligious Understanding. She is also a J.D. candidate at the Benjamin N. Cardozo School of Law of Yeshiva University, where she is a member of the Cardozo Law Review. Ms. Lavery holds a B.A. in Religious Studies from New York University, where she wrote her honors thesis on the Church of Jesus Christ of Latter-Day Saints and its relationship with American culture.

Anthony Lewis was a columnist for the New York Times from 1969 to December 2001. He has twice won the Pulitzer Prize and in 2001 he was awarded the Presidential Citizens Medal. From 1956–57 he was a Nieman Fellow and he spent the academic year studying at Harvard Law School. Mr. Lewis was for fifteen years a Lecturer on Law at Harvard Law School, teaching a course on the Constitution and the press. He has taught at a number of other universities as a visitor, among them the Universities of California, Illinois, Oregon, and Arizona. Since 1983 he has held the James Madison Visiting Professorship at Columbia University.

David Luban is the Frederick J. Haas Professor of Law and Philosophy at Georgetown Law School. Previous to his tenure at Georgetown, Professor Luban taught at Kent State University and the University of Maryland. His numerous articles and chapters have focused on a range of topics in legal ethics, the social responsibility of lawyers, law and philosophy, jurisprudence, and social justice. He has been a Woodrow Wilson Graduate Fellow, a Guggenheim Fellow, a Danforth Fellow, a Keck Foundation Distinguished Senior Fellow in Legal Ethics and Professional Culture at Yale Law School, and a Fellow of the Woodrow Wilson International Center for Scholars. He was chosen by the American Bar Foundation for the 1998 Keck Foundation Lecturer Award in Legal Ethics and Professional Responsibility.

Heather MacDonald is a John M. Olin Fellow at the Manhattan Institute and a contributing editor to City Journal. Her writings have also appeared in The Wall Street Journal, Washington Post, New York Times, The New Republic, Partisan Review, The New Criterion, Public Interest, and Academic Questions and she is also a frequent guest on Fox News, CNN, and other television and radio programs. A non-practicing lawyer, Ms. MacDonald has clerked for the Honorable Stephen Reinhardt on the U.S. Court of Appeals for the Ninth Circuit and she was an attorney-advisor in the Office of the General Counsel of the U.S. Environmental Protection Agency. She has testified before the Subcommittee on Civil and Constitutional Rights of the Committee of the Judiciary of the U.S. House of Representatives.

Andrew C. McCarthy was an Assistant U.S. Attorney for the Southern District of New York for eighteen years. He led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, and is currently a senior fellow at the Foundation for the Defense of Democracies. The recipient of numerous awards, including the Justice Department's highest honors: the Attorney General's Exceptional Service Award (1996) and Distinguished Service Award (1988). Mr. McCarthy has also served as an adjunct professor of law at Fordham Law School and New York Law School.

Major Michael (Dan) Mori, United States Marine Corps, currently serves as Military Defense Counsel for Mr. David Hicks, an Australian citizen, before a military commission at Naval Base Guantanamo Bay, Cuba. Major Mori has served as Judge Advocate in the U.S. Marine Corps since 1996 and has performed the duties of Defense Counsel, Prosecutor and Special Assistant U.S. Attorney.

Burt Neuborne is the John Norton Pomeroy Professor of Law at NYU School of Law and the Legal Director of the Brennan Center for Justice. For 30 years, he has been one of the nation's foremost civil liberties lawyers, serving as National Legal Director of the ACLU, Special Counsel to the NOW Legal Defense and Education Fund, and as a member of the New York City Human Rights Commission. He has argued many Supreme Court cases, and litigated literally hundreds of important constitutional cases. He challenged the constitutionality of the Vietnam War, pioneered the flag-burning cases, worked on the Pentagon Papers case, worked with Justice Ruth Bader Ginsburg when she headed the ACLU Women's Rights Project, and anchored the ACLU's legal program during the Reagan years.

Deborah Pearlstein is the Director of the U.S. Law and Security Program at Human Rights First and a visiting lecturer in human rights and national security at Stanford Law School. Before embarking on a career in law, Pearlstein served in the White House as a senior editor and speechwriter for President Clinton. After her graduation from Harvard Law School in 1998, Pearlstein clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit, and then for Justice John Paul Stevens of the U.S. Supreme Court. In 2002, Pearlstein shared the ACLU's Voting Rights Award for her work on election systems reform in California following the 2000 presidential election.

Dana Priest covers the intelligence community and national security issues for The Washington Post and is an analyst for NBC News. Her widely acclaimed 2003 book about the military expanding responsibility and influence won the prestigious New York Public Library Bernstein Book Award and was a finalist for the Pulitzer Prize. In 2004, she was a Pulitzer Prize finalist twice, for her reporting on clandestine intelligence, and for her contribution to the Post's reporting on the Abu Ghraib prison abuse scandal. In 2001, Priest was awarded a MacArthur Foundation Research and Writing grant and was a guest scholar in residence at the U.S. Institute of Peace. The same year, she won the Gerald R. Ford Prize for Distinguished Reporting on the National Defense and the State Department’s Excellence in Journalism Award.

Michael Ratner is President of the Center for Constitutional Rights. He was co-counsel in representing the Guantanamo detainees in the Supreme Court, where a major victory was won in June 2004. He and his office have sued two of the private contractors in Iraq, alleging their employees were involved in the abuses and torture at Abu Ghraib. He recently filed a criminal complaint in the courts of Germany against Secretary of Defense Rumsfeld and other U.S. officials seeking the initiation of criminal prosecutions for the Abu Ghraib abuse and torture. Mr. Ratner serves as an Adjunct Professor at Columbia Law School, where he teaches international human rights litigation, and previously as a Lecturer at Yale Law School. He is a former President of the National Lawyers Guild, and has served as Special Counsel to Haitian President Jean-Bertrand Aristide to assist in the prosecution of human rights crimes.

David B. Rivkin, Jr., is a partner in the Washington, D.C., office of Baker & Hostetler LLP. Mr. Rivkin is a Visiting Fellow at the Nixon Center, Member of the UN Sub-Commission on the Promotion and Protection of Human Rights and a contributing editor at the National Interest and National Review. He served in the White House Counsel's Office and in the Departments of Justice and Energy during the Reagan and Bush Sr. Administrations. He frequently writes on international and constitutional law matters, as well as foreign and defense policy issues, for a variety of newspapers and magazines including The Washington Post, Wall Street Journal, New York Times, Financial Times, LA Times, Foreign Affairs, and Foreign Policy, and appears regularly on a number of TV and radio shows.

Jeffrey K. Shapiro is a lawyer in private practice in Washington, D.C. His practice focuses primarily on helping medical device and diagnostic manufacturers comply with U.S. Food and Drug Administration (FDA) regulatory requirements. Mr. Shapiro is the co-author of a book published in April 2005, Combination Products: How to Develop The Optimal Strategic Path for Approval, which is a guide for manufacturers seeking FDA approval of groundbreaking new medical products and therapies that combine drug, device or biologic therapies. From 1991 to 1994, he served as an attorney-advisor in the Justice Department's Office of Legal Counsel. He is a graduate of Harvard Law School.

William H. Taft IV is of counsel resident at the Washington D.C. law firm of Fried Frank, Harris, Shriver & Jacobson LLP. In 2001, Mr. Taft was appointed as Legal Adviser to the Department of State, where he served for four years. From 1981 to 1984, Mr. Taft was General Counsel for the Department of Defense. He also served as the Deputy Secretary of Defense from January 1984 to April 1989 and as Acting Secretary of Defense from January to March 1989, as well as the U.S. Permanent Representative to NATO from 1989 to 1992. Prior to his initial appointment to the Department of Defense, Mr. Taft was in private law practice in Washington, D.C., from 1977 to 1981. Mr. Taft received his J.D. in 1969 from Harvard Law School and his B.A. in 1966 from Yale University.

Detlev F. Vagts is the Bemis Professor of International Law at the Harvard Law School and has taught there since 1959. Prior to his academic career, Professor Vagts was associated with Cahill, Gordon, Reindel & Ohl in New York City from 1951–53 and 1956–59, and a Judge Advocate in the United States Air Force from 1953 to 1956. He graduated from Harvard College and Law School, and was an Associate Reporter of the Restatement (Third) of Foreign Relations Law and Counselor on International Law at Department of State.

Peter Weiss is a leading human rights lawyer and Vice President of the Center for Constitutional Rights. He also serves as Vice President, former President, of the International Association of Lawyers Against Nuclear Arms. He litigated the seminal case establishing the right of victims of torture to sue their torturers in U.S. courts (Filartiga v. Pena-Irala). Since his retirement in 1996 from Weiss Dawid Fross Zelnick & Lehrman, a leading trademark firm, he has been Senior Intellectual Property Counsel to The Chanel Company Ltd. He is also a founder and former President of the American Committee on Africa and former Chairman of the Board of the Institute for Policy Studies in Washington. He has also long been an activist for peace in the Middle East and is currently a member of the Arab-Jewish Peace Group in New York and of the Executive Committee of Americans for Peace Now, which supports the Peace Now movement in Israel.


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