Here's the a link to C-SPAN's coverage of the subcommittee hearing at which Professor Marjorie Cohn testified on Tuesday May 6, on Bush Administration interrogation policies.
Read a transcript of Professor Cohn's Testimony:
Testimony of Marjorie Cohn:
"From the Department of Justice to Guantánamo Bay: Administration Lawyers and Administration Interrogation Rules"
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
House Judiciary Committee
May 6, 2008
What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. That's Latin for "higher law" or "compelling law." This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition.
The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture."
Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.
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 14, 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.
Here's an account of the hearing from the Congressional Quarterly:
CQ TODAY ONLINE NEWS
May 6, 2008
House Panel Authorizes Subpoena of Cheney's Chief of Staff
By Keith Perine, CQ Staff
A House Judiciary subcommittee voted Tuesday to authorize a subpoena for Vice President Dick Cheney 's chief of staff as part of an investigation into the legality of controversial Bush administration counterterrorism policies.
The Subcommittee on the Constitution, Civil Rights, and Civil Liberties by voice vote authorized the subpoena of David S. Addington, who served as Cheney's legal counsel before becoming his chief of staff in 2005.
Judiciary Committee Chairman John Conyers Jr., D-Mich., had invited several current and former top administration officials - including Addington and former Deputy Assistant Attorney General John C. Yoo, - to testify at a hearing on the administration's controversial legal opinions on the use of harsh interrogation techniques on terror suspects.
In an April 18 letter to the committee, however, the vice president's office questioned the committee's authority to summon Addington to testify.
The subcommittee did not authorize a subpoena for Yoo, as originally expected, because he has agreed to appear before the committee in the future.
Shin Inouye, a spokesman for Constitution Subcommittee Chairman Jerrold Nadler, D-N.Y., said that the subcommittee voted to issue the subpoena because it's their jurisdiction, but the hearing will probably be conducted by the full committee sometime in June.
The full Judiciary Committee asked the Justice Department a week ago for copies of all its written opinions on the legality of controversial Bush administration counterterrorism policies.
Citing "the threat to our constitutional system of government posed by what appears to be a large and expanding body of secret executive branch law," the committee specifically requested 11 memoranda apparently written in 2001 and 2002.
Some memoranda issued since 2001 by the department's Office of Legal Counsel have been released, and they lay out an expansive view of Bush's unilateral authority to spy on Americans or arrest and harshly interrogate suspected terrorists. But other memoranda remain secret. The department has rescinded some of the opinions.
The American Civil Liberties Union praised the panel's investigation and its ongoing hearings. "This is truly a defining moment for America," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "It is well past time for Congress and the American people to know if our highest officials authorized torture and whether or not criminal laws were broken. Hopefully some of these lingering questions will be answered. Those whose presence was requested for today's hearing but refused to show up should be subpoenaed by Congress. The American people have the right to know what happened and who is responsible."
During the Tuesday hearing, the subcommittee heard testimony from a panel of four academics, three of whom were administration critics.
"The administration consciously sought legal advice to set aside international constraints on detainee interrogations," said Philippe Sands, a University of London law professor.
Marjorie Cohn, a law professor at the Thomas Jefferson School of Law, said "torture does not work," and added that less coercive interrogation methods produce better results. Trent Franks of Arizona, the top Republican on the subcommittee, said it was "naive" to think that suspected terrorists should be questioned only without using harsh methods.
Emily Walker contributed to this story.