John Yoo's Torture Memos: Lessons for All of Us

I just published an op-ed in the National Law Journal, where I suggest that John Yoo may have written his torture memos for some of the same reasons that people applied 450 volt electric shocks to a bound older man in Stanley Milgram's famous experiments.  Have a look, and let me know if you agree.

Update: I recently got reprint permission.  Here's the text of the op-ed:

The "Torture Memos": Lessons for all of us

Andrew Perlman / Special to The National Law Journal
May 05, 2008


It is easy to believe that John Yoo wrote his widely discredited "torture memos" because he holds radical views of presidential authority or because he has some unusual moral failing. The reality, however, may be far more ordinary and disturbing: He willfully followed the lead of White House officials who were eager to find a legal justification for torture. The banality of Yoo's compliance shouldn't excuse him in any way, but his mistakes can help us understand why attorneys might offer equally troubling legal advice in much less public settings.

We can draw some valuable insights in this regard from one of the most stunning social psychology experiments ever conducted. More than 40 years ago, Stanley Milgram found that, under the right conditions, an experimenter could successfully order more than 60% of adults to administer what they believed to be painful and dangerous electric shocks to an innocent, bound older man with a heart condition, despite the man's repeated pleas to be let go. In essence, Milgram found that people are surprisingly likely to obey authority figures under certain conditions.

Social psychologists have identified many of the conditions that tend to promote this type of wrongful obedience, including (1) a plausible legitimate reason for the wrongful conduct (Milgram's subjects were told that the experimenters were studying the learning process); (2) positive language to describe the negative behavior (Milgram's subjects were told that the shocks would help the bound person to learn); (3) rules that, on their face, seem benign; (4) the creation of a contractual obligation to help; (5) the assignment of specific roles (Milgram's subjects were "teachers"); (6) the physical separation of the victim from the person carrying out the orders; (7) the proximity of the person issuing the orders to the person following them; (8) the blurring of responsibility for the wrongful conduct; (9) the incremental nature of the requests (Milgram's subjects started shocking the "learner" at a benign 15 volts and increased the shocks by small increments); (10) the social prestige of the setting; and (11) the elimination of dissent (Milgram found that the presence of a dissenter dramatically reduced obedience). For a similar list, see Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil 273-75 (2007).

Notably, the conditions that produced obedience in Milgram's experiments probably also existed at the Office of Legal Counsel (OLC) when Yoo wrote his infamous memos. The White House gave Yoo a plausible legitimate reason for the wrongful conduct — preventing future terrorist attacks (factor No. 1). Administration officials often referred to "torture" as "enhanced interrogation" (nos. 2 and 3). Yoo probably felt some obligation to help the White House, given the OLC's stated role as adviser to the president and the climate of fear regarding terrorism (No. 4). The lawyering role also insulated Yoo from feeling personally responsible for torture; he was "merely" offering a legal opinion (No. 5). In addition, the detainees were removed from him in time and place, making it easier for him to ignore the consequences of his memos (No. 6).

Yoo had to report directly to top officials at the White House, who were insistent on getting the legal opinions that they wanted (No. 7). Moreover, Yoo could have perceived that he was "simply" giving a legal opinion; he wasn't engaging in torture, nor was he advising as a policy matter that torture should occur (No. 8). And the move toward torture occurred gradually over a period of months, with increasing pressure from top officials to justify "enhanced interrogation" techniques (No. 9). The prestige of the White House (No. 10) would also have contributed to Yoo's willingness to comply, especially given Yoo's relative youth at the time. (He was in his 30s.) Finally, the White House was well-known for quashing dissent on issues of this sort, making it even more difficult for someone to express independent judgment (No. 11).

Insights into other bad advice

Of course, none of this justifies Yoo's conduct or excuses him in any way. Indeed, Jack Goldsmith, the subsequent head of the OLC, rescinded some of Yoo's memos and successfully resisted the same pressures that Yoo faced. Nevertheless, by trying to understand why Yoo would have offered fundamentally wrong legal advice, we can gain insights into why other lawyers in more commonplace professional settings might offer similarly bad advice to powerful figures, whether they are White House officials, important law firm partners or corporate executives. Our obedience might take the form of following a client's request to bury a discoverable "smoking gun" document or offering evidence that we know is false, but the forces at work are ultimately the same.

If Yoo was willing to create a legal justification for torture because the White House requested it, we as lawyers — as people — are all at risk of following orders rather than exercising independent professional judgment. Again, our tendency to make these mistakes doesn't give us license to commit them or exculpate us if we already have done so. But our awareness of our own susceptibility to this tendency can help us develop better strategies for resisting troubling commands in whatever form they might arise.

This op-ed is reprinted from the May, 5, 2008 edition of the National Law Journal © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited

Comments

[Patrick S. O'Donnell]

Well, no doubt you've endeared yourself to the folks at The Situationist blog! See: http://thesituationist.wordpress.com/about-situationism/

[David Hricik]

I wrote and have on cleonline.com a cle program about Yoo's memos and this issue, which I did a few years ago, and that, basically, was my take: I used his experience as a basis to talk about the "every day" risks of not giving objective advice. I do a lot of online cle, but have to say that I have received more comments about that "program" than any other I've done.

[Bill Henderson]

Great article. And I love the broader lessons you developed on this theme in your recent SSRN paper. Great work. It will find its way into our legal professions teaching materials. bh.

[rbnn]

This article seems inappropriate to me.

First, it claims the memos are "widely discredited" without any cite. Now, obviously the memos are widely criticized. But most of this criticism is simply result-oriented: "X is evil, the memos say X is legal under statute Y, so the memos are wrong." There has been virtually no criticism of the specific legal reasoning of the memos, and what there is usually seems to misrepresent what the memos actually said (see my comment to Luban's testimony above).

Second, the article suggests Yoo provided some kind of justification for torture. But Yoo in fact made clear that section 2340 prohibited torture. Yoo's memos do not justify torture, they define it and prohibit.

Third, by raising the specter of Milgram, the article suggests Yoo supported use of electric shocks. But page 47 of the memo specifically states that use of electric shocks is illegal - as it would be torture, which is illegal.

Fourth, the article conflates the policy question of "how to treat detainees" with the legal question of "what laws govern the treatment." The OLC was asked a legal question: what are the laws? It answered the question based on the statutes Congress wrote. In order for the Executive and Congress to function effectively and to write and enforce fair laws, they need objective analysis of those laws - even if only to change laws that turn out not to be good. If Yoo was providing accurate, objective analysis of what the law was, he was doing the right thing - even if you disagree with those laws. (If you disagree with them, then of course Congress could change them, or the Executive could follow policies stricter than the limit of the law).

[Andrew Perlman]

Rbnn,

Thanks for the comments.

As for your first point, you're right that I didn't offer citations. But I would urge you to offer a citation to knowledgeable, non-partisan authorities who believe that Yoo's memos were well-grounded in existing law. My understanding is that there are very few such authorities. I think it was quite fair for me to say that Yoo's memos have been widely discredited. They have been.

Second, you're right that Yoo didn't condone torture. He simply defined torture in such a way that torture wasn't really considered to be "torture." That's exactly my point. The administration simply called torture "enhanced interrogation," but by any reasonable definition, Yoo's memos were condoning torture under any reasonable definition.

I never said that Yoo endorsed electric shocks. I used the Milgram experiments solely to point out people's willingness to obey authority figures. You have read too much into the analogy.

As for your last point, it takes us back to point one. We have a difference of opinion as to whether Yoo's memos accurately characterized the existing law.

[rbnn]

Thank you for the response to my comment. I appreciate your taking the time to respond to an anonymous blog post.

First, it seems to me only fair that since your article was the one that claimed that Yoo's memos were "widely discredited" that you should point to even a single article that you believe discredits the legal analysis of the memos themselves. Similarly, do you have any source that backs up your claim that Yoo's memos did not accurately characterize existing law?

As to your claim that Yoo defines "torture" so as not to be "torture", this, after all, is the issue addressed in the memo. You are conclusorily stating that you disagree with Professor Yoo's interpretation of section 2340, but you are not saying what your interpretation is or why it is a better reading of the statute. How would you define torture or "severe pain" as used in section 2340 in a way different from how Yoo does so? Would you be willing to give an example of a technique you believe is prohibited by section 2340, but that Yoo's interpretation implies is not prohibited?

[Andrew Perlman]

Rbnn,

Regarding the discrediting of the memos, I think it suffices to say that Jack Goldsmith, a conservative and subsequent head of the OLC, took the extraordinary measure of rescinding the memos because they were unsupportable as a matter of law. That's about as compelling as it gets regarding the memo's flawed legal reasoning. Can you give me a similarly good example of someone who believes the memos reflected sound legal analysis?

Regarding the definition of torture, waterboarding and chaining someone to a ceiling for a few days all fit within a normal person's understanding of torture and seem to fit squarely within the statute's definition of torture. Nevertheless, they were not precluded by Yoo's definition; indeed, these forms of torture were carried out by American jailers.

[rbnn]

Thank you once again for your reply. I appreciate your effort to provide some citation for your claim the Yoo analysis was "discredited" or incorrect, but it's not sufficient.

Even if Goldsmith does disagree with the legal reasoning, a conclusory statement by him that the legal claims were "unsupportable", even if he did make that statement (which you do not provide a citation for) does not "discredit" the memo. There must be some reason he gives for why he believes it to be unsupportable, some legal analysis for what about the reasoning is incorrect, for the statement to discredit the memo. This is particularly so because everyone knows Yoo's conclusions are wildly unpopular, so there would be strong pressure for people to argue that his conclusions are, in fact, incorrect too.

Doesn't it seem curious that there are so many people who claim without any supporting reasoning that Yoo's analysis is incorrect and so few (none, apparently) who actually have publicly addressed and analyzed Yoo's actual reasoning? Doesn't the fact that Yoo's critics so often misconstrue his words, as in the Times articles, or just plain misquote him, as in the Luban testimony, suggest that what Yoo actually wrote is legally sound? If what Yoo wrote were incorrect, not merely unpopular, there would be no need for the misquoting and the hyperbole.

In any case, I would still advocate the position that you should either provide some specific source that actually addresses Yoo's reasoning in his memos, and discredits that reasoning, or, in the alternative, I think you should modify your wording that Yoo's memos have been "widely discredited" to "widely criticized."

You have asked a couple times now for a citation to an article that argues for the correctness of Yoo's analysis; I know of none. I never claimed there was. By contrast, you *are* making the claim that Yoo's analysis is both incorrect and is widely known to be so, so you *should* support such claims with citations.

Finally, thank you for providing examples of interrogation techniques as to whose legality under section 2340 you believe Professor Yoo's analysis would yield an incorrect result (assuming they are used extraterritorially to aliens not protected under the Geneva Conventions). Chaining from a ceiling, your first example, would cause severe pain, and would be proscribed. Seems straightforward. It would also be prohibited under the UN Convention Against Torture (see memo at 81, 59, prohibiting "cruel or degrading punishment" that would be a violation of international law because it violates the 8th amendment). I suppose if a way were found to hang someone from a ceiling in a way that was comfortable, maybe in a hammock, then that would not be painful or degrading, so there would not be Eighth Amendment or Convention Against Torture issues, and it also would not fall under 2340, because it would not cause severe pain. But Yoo's analysis seems like it asks the right questions from the point of view of assessing the legality: Does it cause severe pain? Does it violate the UN Convention Against Torture? Does it violate the Eighth Amendment? I don't see what's wrong with his reasoning as a matter of statutory interpretation.

[Andrew Perlman]

You can read Goldsmith's reasons for his actions in his book, The Terror Presidency. He offers a careful analysis there. (Check out pages that appear in the 140s of the book, for example.) After reading it over, I'll look forward to your citation to sophisticated authorities who believe that Yoo's memos were well-grounded in existing law.

I could cite to many other scholars, but here is another that came up quickly in just a cursory search: http://balkin.blogspot.com/2005/01/understanding-olc-torture-memos-part-i.html

I think the above authorities adequately address your point about the definition of torture and how Yoo's legal analysis was flawed in this important regard.

[rbnn]

Goldsmith does attack Yoo's memo, I grant that. But most of the attack is unsupported invective (e.g. "bad defense counsel's brief", p. 149). Some of it is innuendo, as when Goldsmith darkly alludes to "other questionable statutory interpretations" by Yoo without deigning to say what these actually are (p. 145).

As to legal analysis, Goldsmith addresses only two specific legal arguments by Yoo. He misquotes or misreads Yoo both times.

First, Goldsmith claims Yoo wrote that "Any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-Chief authority." (p. 148, misquoting Yoo). Yoo never wrote those words. He wrote about battlefield "COMBATANTS" not detainees (Bybee memo at 39). Goldsmith changed Yoo's words, misquoting him to give them a more extreme connotation. Yoo's actual sentence, using the word "combatant" and not "detainee," connotes that the act is performed as part of the military functions of the Commander-in-Chief.

Even if Yoo had written the words Goldsmith ascribed to him, Goldsmith's analysis is unpersuasive. For example, Goldsmith claims that (what he said was) Yoo's theory would make federal "anti-assault laws" unconstitutional. But as Yoo exhaustively explains, general criminal laws are not normally construed to apply to the military in the conduct of military operations. Hence, no constitutional issue. Goldsmith does not even give Yoo's arguments half a sentence, he does not even acknowledge them, nor does Goldsmith give a clue as to why anti-assault laws should apply, as a matter of law, to the conduct of military operations or military interrogation of battlefield detainees.

Similarly, Goldsmith misreads Yoo's "organ failure" test in the by-now familiar hyperbolic way, "Any action that fell short of these extreme conditions [organ failure, substantial physical impairment, death, etc.] could not, in OLC's view, be torture." (p. 148). This, of course, is not what Yoo said at all. Why do so many people mis-parse the phrase that severe pain is "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death" to mean that torture must actually cause such conditions? Since Goldsmith does not correctly state what Yoo wrote, Goldsmith's statutory analysis cannot discredit it.

Although I appeciate your time in citing the Goldsmith reference to me, I am at a loss as to why you find this to comprise "careful analysis" and how a collection of misquotes, misreads, insults, and conclusory statements can be taken to discredit Yoo's analysis.

[Andrew Perlman]

Thanks for digging into the details.

I noticed you didn't respond to Marty Lederman's analysis. I'm curious to know your reaction to his thoughts.

Ultimately, we could go back and forth, with my putting up the names of respected scholars who have criticized Yoo, and you explaining why those people are wrong or mischaracterizing Yoo. If all of Yoo's critics have been so wrong or misleading, however, you should be able to give me a list of reputable scholars (and there are plenty of conservative legal scholars) who have come to Yoo's defense. In the absence of any significant public defense of Yoo's memos by reputable scholars, I'll stick by my original claim that Yoo's memos have been widely discredited.