With Gillian Findlay;
Aired 15 April 2005
Gillian Findlay: I WANT TO GO BACK TO THE MEMO YOU WROTE IN AUGUST 1ST, THE INFAMOUS AUGUST 1ST MEMO. CAN YOU GIVE ME THE CONTEXT FOR THAT? WHY AT THAT PARTICULAR TIME WAS THERE A DESIRE –
John Yoo: I can't talk about that.
Gillian Findlay: WHY NOT?
John Yoo: Because it's classified.
Gillian Findlay: YOU CAN'T JUST EXPLAIN, GIVE A BROAD CONTEXT AS TO –
John Yoo: About why it was asked?
Gillian Findlay: WHY, YES, EXACTLY.
John Yoo: No, I can't.
Gillian Findlay: CAN YOU TELL ME IF IT HAD ANYTHING TO DO WITH Mr. AL QAHTANI, WHO WAS BEING DETAINED AT –
John Yoo: I can't, although if you look at the details of the memos, the memos that have to do with people held at Guantanamo Bay are a different question, right? Those were handled by a Defence Department working group in the spring of 2003, I believe. And this is much earlier, this is over a year earlier, almost a year earlier.
Gillian Findlay: SO CAN YOU THEN SAY IT WASN'T RELATED TO Mr. AL QUAHTANI? WE'RE TRYING TO UNDERSTAND IF THERE WAS A LINK THERE.
John Yoo: I can't.
Gillian Findlay: YOU CAN'T?
John Yoo: No.
Gillian Findlay: THERE'S NOTHING YOU CAN TELL US?
John Yoo: It's all, it's classified. If the government decides to release it, then I could talk about it. But they just, they have not.
Gillian Findlay: WHEN YOU WERE ASKED TO LOOK AT THIS QUESTION, YOU ENDED UP WITH A DEFINITION OF TORTURE EQUIVALENT IN INTENSITY TO THE PAIN ACCOMPANYING SERIOUS PHYSICAL INJURY SUCH AS ORGAN FAILURE, IMPAIRMENT OF BODILY FUNCTION OR EVEN DEATH. DO YOU NOT THINK WHEN YOU SAY THINGS LIKE THAT, YOU WRITE THINGS LIKE THAT IN THE CONTEXT THAT YOU WERE WRITING, THAT THAT OPENS THE DOOR TO THE KINDS OF ABUSE THAT WE HAVE SEEN?
John Yoo: You have to figure out what the law says and again, I think there is an important difference between law and policy. And so I think there is a legal question that has to be answered and I think it's a hard question. Don't get me wrong. What the word "torture" means when it's undefined by federal statutes is a hard question. It's never, that statute had never been interpreted by the executive branch, by courts, prosecutors, by anybody.
So I think it's a hard legal question. That's a different question in my mind than about whether, what kinds of policies ought to be drafted and shaped within the law. And I think factors like, will there be likely abuses to occur or not are certainly things policy makers should think about when they decide what policies to adopt. But it should not, it seems to me, change the legal analysis or the legal conclusion about what Congress has and has not prohibited.
Gillian Findlay: BUT TO THE EXTENT THAT YOUR LEGAL INTERPRETATION INFLUENCED THE POLICIES THAT CAME LATER, AND WE KNOW THEY DID –
John Yoo: I don't agree with that in this sense. The memos don't say: you should interrogate this way or that you should do A, B or C or D, E and F, right?
They only say: this is what the statute means. What you do in terms of interrogation techniques is something that just has to comply with that law. But it doesn't say anything about what interrogation methods to use. Policy makers could have seen that memo and said: we should just follow the Geneva Convention standards, we'll continue to follow them.
Gillian Findlay: BUT YOU OPENED THE DOOR FOR THEM, YOU GAVE THEM THE OPPORTUNITY. YOU SAID YOU CAN ESSENTIALLY DO ANYTHING AS LONG AS YOU DON'T KILL THEM.
John Yoo: The law – the memo [unclear]... it doesn't say you just can do anything but just kill them.
Gillian Findlay: I SAID SHORT OF KILLING. I MEAN INTENSITY OF PAIN ACCOMPANYING SERIOUS PHYSICAL INJURY, ORGAN FAILURE, IMPAIRMENT TO BODILY FUNCTION OR EVEN DEATH.
John Yoo: Right, well, that's includes a lot more –
Gillian Findlay: SHORT OF KILLING THEM.
John Yoo: Well, that includes a lot more things than just short of killing somebody.
Gillian Findlay: BUT MY POINT IS THAT YOU OPENED THE DOOR, YOU SET THE PARAMETERS –
John Yoo: I just don't want to buy into your characterization of the line that's drawn by the memo.
Gillian Findlay: YOU ALSO IN THE MEMO SAY THAT ACTIONS MAY BE CRUEL, INHUMAN OR DEGRADING BUT THEY STILL DON'T EQUAL TORTURE.
John Yoo: Yeah. I think that's a line that Congress drew. So the torture convention says you cannot engage in torture and it says you shall undertake not to engage in cruel, inhuman and degrading treatment. So clearly, the people who drafted the treaty thought they were two different things. And when the Congress, when the Senate adopted the treaty, it only made torture criminal. It did not criminalize cruel, inhumane and degrading treatment. So clearly, Congress thought they were different concepts. I think there is a broader category of things that people can do which are cruel, inhumane and degrading and only extreme versions of that constitute torture. Otherwise, you've expanded the definition of torture, I don't know, to include everything from you know standing at attention from an hour – Or to things that happen in basic training in our military forces, which I don' t think anyone thinks constitute torture.
Gillian Findlay: WHAT CONSTITUTES TORTURE TO YOU?
John Yoo: I think the memo is still correct in that it's extreme physical harm, extreme physical abuse, extreme mental abuse. But I think there are things which can be done which don't meet that level. I'll give you an example. Not letting someone sleep more than seven hours a night or six hours a night. There are many people probably in the international [unclear]... who think that that's cruel, inhumane and degrading treatment, limiting people's sleep. I don't happen to think that's torture. There are a lot of people in this country who live under those conditions, that don't get a lot of sleep. I don't think they're being tortured.
Gillian Findlay: BUT THE OTHER THINGS – THE DOGS, THE SEXUAL HUMILIATION –
John Yoo: I don't think dogs would be – I don't think the use of dogs is, I mean it depends on how they're used. But I don't think just having a dog present is torture in and of itself.
Gillian Findlay: BUT IF THEY'RE USING TO INTIMIDATE AND TO FRIGHTEN?
John Yoo: If a person, I mean there's a definition you know the memo, if you go beyond the one sentence there, has a description about physical and mental abuse. And certainly if someone had inordinate fear of dogs, then using them could constitute mental abuse. But it would depend on the person.
Gillian Findlay: WELL, AND WE KNOW IN ARAB CULTURE THAT FEAR OF DOGS IS A VERY COMMON THING.
John Yoo: Well, if that's the case, then it might be. But it depends. You can't also say that having a dog around in all cases is torture, could you? No.
Gillian Findlay: YOU TALK A LOT ABOUT COST VERSUS BENEFIT. EVERYTHING THAT YOU NOW KNOW THAT HAPPENED IN THESE PLACES, WHETHER OR YOU NOT ACCEPT THAT THEY ARE SOMEHOW RELATED TO THE POLICY YOU WROTE –
John Yoo: Well, a lot of them I don't think can be discussed. I mean I think the United States has successfully prevented terrorist attacks on the country, some of which could have been quite devastating.
Gillian Findlay: HOW DO YOU KNOW THAT?
John Yoo: I think the president just gave a speech a few weeks ago listing 10 attacks that were stopped, several of which were around the country, several of which could have led to a lot of deaths. But I don't think the United States can or should disclose publicly what those are in the middle of a war, where release of that information could give an advantage to the other side.
Gillian Findlay: BUT HOW DO WE KNOW? I MEAN, WITH ALL RESPECT TO THE PRESIDENT, YOU CAN SAY THESE THINGS. IT DOESN'T NECESSARILY MAKE THEM TRUE. HOW DO YOU KNOW –
John Yoo: He doesn't have to justify them to the people of Canada either, but he does have to justify them to the Senate and the House. I mean there are, there is a procedure for briefing the House and Senate intelligence committees about these exactly these kind of things. But they have to remain classified, so they have had it explained. If they don't like it, they could cut funding off for it, they could pass laws prohibiting it. There's a lot of things Congress can do to counter things that they don't agree with. And those you know so it is up to the president. But he also has to get the cooperation of Congress. And I think the American people generally don't want the executive branch to start explaining in great detail how certain kinds of information led to the prevention of this terrorist attack or that terrorist attack – If they understood that it could give Osama bin Laden and al-Qaeda an advantage in fighting against us in the future.
Gillian Findlay: BUT YOU KNOW AS WELL THAT THERE IS A LARGE BODY OF THOUGHT OUT THERE, INCLUDING WITHIN THE MILITARY ITSELF, THAT BELIEVES THAT YOU CAN'T TRUST THE EVIDENCE YOU GET THROUGH COERCIVE INTERROGATIONS. WHY DO YOU TRUST IT?
John Yoo: I'm not saying I trust it or distrust it. I agree that that's up to experts to decide. But there are people obviously who seem to think it works and there are cases where it may not work. I'm not saying it ought to be used in all circumstances. All I'm saying is that the law does not compel us not to consider that option. But people, policy makers can certainly decide not to use it if they think the costs outweigh the benefits. That's what they should do.
Gillian Findlay: BUT I'M ASKING YOU AS SOMEBODY WHO WAS MUCH CLOSER TO WHERE THESE DECISIONS WERE BEING MADE – ARE YOU CONVINCED THAT THE COERCIVE KINDS OF INTERROGATIONS, FRANKLY THE ABUSE THAT WE HAVE SEEN, THAT WE NOW KNOW ABOUT THAT HAPPENED IN SOME OF THESE PLACES, ARE YOU CONVINCED THAT THE BENEFITS OUTWEIGH –
John Yoo: Oh, I don't think I have the information to make that judgment. I –
Gillian Findlay: YOU WOULDN'T KNOW?
John Yoo: I wouldn't know.
Gillian Findlay: SO THEY MIGHT NOT BE?
John Yoo: They might be, they might not be. Who knows? I don't know. I mean all we focus on in public are the costs. We don't focus at all on the benefits.
Gillian Findlay: WHAT ABOUT THE COSTS? WHAT HAVE BEEN THE COSTS, DO YOU THINK?
John Yoo: Yeah, I mean there have been cases of abuse. There have been cases where people have gone beyond the rules and that has been the harm. But that is certainly cost but we have to measure it against the benefits and that's what we have elections for. We had a national presidential election in the middle, right in the middle of all of the disclosures of this, in the middle of this war. And people could have elected Bush out of office if they thought this was improper and that the costs outweighed the benefits. They could have replaced –
Gillian Findlay: DO YOU THINK THAT ELECTION WAS A REFERENDUM ON THE TORTURE POLICY?
John Yoo: … it was certainly a referendum on the war on terrorism.
Gillian Findlay: SO YOU THINK HIS VICTORY VINDICATES EVERYTHING THAT'S HAPPENED?
John Yoo: No. I've used that – if people disagree with that policy, they certainly could have voted him out of office and voted the Republicans out of the House and the Senate. And there's no doubt the war on terrorism was front and centre, the primary issue that was being debated in the presidential election. And I'd point out that Senator Kerry could have raised this issue if he'd wanted to and attacked President Bush about it, as some you know some other people did. He certainly chose not to. I think if the people didn't approve of the policies – that's what elections are for. I don't see, what's the point of having elections if not for that?
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