Organ Failure and Death

Watching Professor John Yoo and David Addington dance around questions when they appeared before the House Judiciary Subcommittee on Civil Rights was a jaw-dropping experience - - a moment of truth that derived not so much from the answers given by the two subjects of inquiry but rather more from a default position as they wiggled around and away from addressing in a forthright manner what they were asked.

Strangely, after his aggressively assertive memos regarding executive power and torture, Yoo was evasive and prone to parsing every statement with comments such as "I refer you to my opening statement" which drew angry interruptions from various members of the committee to ‘just answer the question yes or no.' When he wasn't doing that he often turned to a Justice Department representative seated behind him for advice as to whether he could reply to specific questions about interrogation techniques, how they were applied and who authorized them. And when asked if his legal opinions and definitions of torture had been implemented, there was a long convoluted harangue between Yoo and questioner regarding the meaning of the word "implemented."

Yoo's early memos claim a unique insight into "the mindset of the framers" who would, according to his analysis, have endorsed the president's power of "unilateral warmaking." (The Nation, Stephen Holmes, 4/13/06) Yet his diffidence with the committee suggested that he might have some concerns about how his opinions shaped policies regarding detentions and what the president likes to call "enhanced interrogation methods" - - to say nothing of how broadly this administration has interpreted its war powers. When asked if water-boarding or the use of dogs were acceptable interrogation techniques, Yoo said his answers might take him into classified areas. Please.

For his part, Addington, Chief of Staff and former counsel to VP Cheney, said that, while he had visited Gitmo and observed the questioning of some detainees, the sessions appeared to be just conversations, nothing unusual. And in responding about whether the use of "harsher methods" had been discussed, he said "I don't recall", the preferred response by members of this administration when they are willing to testify at all. Again, as with Yoo, it would seem that if Addington felt the president was within his rights to do "whatever was required" in extracting information from "terrorist" suspects, he could simply have said we did what we needed to do. Period!

But neither man made such a bold assertion, and that's what was so illuminating about the proceedings. Suddenly both Addington and Yoo felt constrained to temper positions that had seemed so compelling in the past with the softening agent of forgetfulness and by distancing themselves from actual events. Clearly Congress had assumed its anti-torture legislation would be respected by the executive branch, but the question soon became how exactly torture was to be defined.

Yoo had advanced the opinion that unless interrogation methods resulted in injury that caused organ failure, death or serious impairment of bodily functions they did not fit the definition of torture. Why then the tiptoeing around questions from the committee when these White House advocates had been so sure of themselves in the past? One clue might be derived from Yoo's earlier opinions about executive power that were and continue to be in dispute. The Constitution did after all grant very specific powers to three separate branches of government. As Ivan Eland put it "...more tragic and dangerous for the republic than the quagmires of Iraq and Afghanistan have been President Bush's Yoo-surping of power from the other two branches of government and the creation of the hyper-imperial presidency." (http://www.anti-war.com/, 4/7/08)

Congress does not take kindly either to being ignored or having its legislation perverted beyond recognition. And so when asked if anyone in the administration had gone back to Congress to ascertain what they meant by torture, the answer was, typically enough, a most unsatisfactory and not pleasantly received "not to my knowledge."

In any case, pretty much everyone gets ‘the death thing', and it doesn't conform to any rational definition of torture. As Supreme Court Justice Stewart said back in the ‘60s, about pornography, ‘I can't define it, but I know it when I see it.' So are most Americans able to identify torture when they see or hear about it; it's only the current leadership and its stooges who strive to confuse the issue.