Harold Hongju Koh, Dean of Yale University’s law school and a former US assistant secretary of state, went to Geneva in 2000 to present the first US report on its compliance with the UN 1994 Convention against Torture. He says he told the global gathering the US was “unalterably committed to a world without torture”.
This week’s revelations that Bush administration lawyers had sought to find legal justifications for torturing terrorist detainees have left him dumbfounded.
“They are blatantly wrong,” he says. “It’s just erroneous legal analysis. The notion that the president has the constitutional power to permit torture is like saying he has the constitutional power to commit genocide.”
Mr Koh is one of the small community of top international lawyers who say they are more shocked than anyone at what their profession has wrought. Scott Horton, past chairman of the international human rights committee of the New York City bar association, says the government lawyers involved in preparing the documents could and should face professional sanctions.
“There are serious ethical shortcomings here,” he says. “Lawyers who are employed by the US government have a responsibility to uphold and enforce the laws of the United States,” which include domestic and international legal prohibitions on torture. “To make an argument that the president’s wartime powers give him the right to avoid these statutes is preposterous.”
Elizabeth Rindskopf-Parker, dean of the McGeorge school of law and former general counsel to both the National Security Agency and the Central Intelligence Agency in Republican administrations, says: “Several decades of work to insure that our intelligence and national security agencies as well as those of other nations operate under the rule of law have been severely undermined for benefits that are at best speculative.” She says the memos “appear better designed to defending criminals than to guiding the policies of the world’s most powerful nation”.
Government lawyers have traditionally kept their clients – the president and top officials – out of trouble. Critics say the Bush administration has turned that on its head.
“It’s the lawyers pushing the envelope, trying to eliminate restrictions rather than asserting them,” says Tom Malinowski, a former lawyer for the National Security Council who works for Human Rights Watch.
Several current and former administration lawyers, including Jack Goldsmith, the head of the Justice Department’s office of legal counsel and a former Pentagon special counsel, and John Yoo, a former deputy in the division, argued before entering the administration that international law could not constrain executive action.
Mr Yoo, now a professor at Berkeley, dismisses criticisms about the ethics of those who drew up the document as “groundless and without merit. It’s clear what the memo does. It explains what the law is.” It “tries to figure out what lines are drawn by different treaties and statutes”, noting that Congress “set a very high definition on what torture is”.