User:Zoticogrillo/Letter from John Yoo to Alberto Gonzales

John Yoo, then Deputy Assistant Attorney General of the United States of America, addressed a memorandum to Alberto Gonzales, then the Counsel to the President, dated August 1, 2002, in response to Gonzales' reported request for legal opinion on whether interrogation methods used on al Qaeda operatives would be in violation of the U.N. Convention Against Torture, and whether such actions could be the basis for prosecution in the International Criminal Court. The letter is intended to supplement the memorandum sent to Gonzales the same day by Jay Bybee, to which it occasionally refers. The letter concludes that the interpretation of the Department of Justice of 18 U.S.C. s. 2340, which enacted into U.S. law the Convention Against Torture, does not conflict with the Convention Against Torture because of the reservations of the United States recorded upon ratification. It also concludes that "actions taken as part of the interrogation... cannot fall within the jurisdiction of the ICC, although it would be impossible to control the actions of a rogue prosecutor or judge." The letter in its analysis then explains the Department of Justice's interpretation of s. 2340-2340A, their interpretation of the Convention Against Torture as applied to the United States and the status of the U.S. reservations, and explains its position on the possibility of prosecution by the ICC.

Part I
In the explanation of the definition of torture according to 18 U.S.C. section 2340 it emphasizes the need for the pain to be severe, although it does not attempt to define what "severe pain or suffering" means. It also emphasizes that the individual inflicting such pain must have "specific intention to inflict severe pain or suffering." The letter then explains section 2340's definition of "severe mental pain or suffering," and reminds the reader of the need for "prolonged mental harm."

Part II
As the memo quotes from the definition of torture in the Convention Against Torture, it compares that definition with the one found in the U.S. statute, and analyses the effect of the ratification reservation of the U.S. to the convention. That reservation was mainly regarding article one of the convention, which defines torture, but it also states that the U.S. refuses to accept jurisdiction of the International Court of Justice regarding conformity to the convention. It points out that in the reservation, the language of specific intent was added (as opposed to the general intent in the convention), and it further explained what was meant by mental pain or suffering (as it appears in the U.S. statute). Commenting on the specificity of the reservation and statute regarding mental pain or suffering, it comments that, “this understanding ensured that mental torture would rise to a severity comparable to that required in the context of physical torture.” The memo explains treaty law which states that the U.S. is only bound to the treaty as modified by the reservation, and points out that the language of the reservation is “nearly identical” to that of 18 U.S.C. s. 2340. Therefore, it states, if the interrogation conduct did not violate the U.S. statute, it would also not violate the U.S. obligations under the convention. However, even though the letter stated that there was little substantive difference between the definition of torture in the text of the statute (or reservation) and in the convention, most of the material in this part of the memo is dedicated to explaining why the reservation to the convention is valid and cannot be over-turned. The memo closes this section reminding the reader of the refusal of the U.S. to accept the jurisdiction, and that, “[a]lthough the Convention creates a [c]ommittee to monitor compliance, [the committee] can only conduct studies and has no enforcement powers.”

Part III
In discussing the possible prosecution by the ICC, the memo states that the U.S. did not ratify the necessary treaty for such jurisdiction (the Rome Statute), and that even if the ICC were to claim jurisdiction over the matter, “interrogation of an al Qaeda operative could not constitute a crime under the Rome Statute,” since it would not involve the “widespread and systematic attack directed against any civilian population,” and it would not be a war crime. Yoo clarifies that, in his opinion, “[t]he United States’ campaign against al Qaeda is an attack on a non-state terrorist organization, not a civilian population.” He also reiterates President W. Bush’s assertion that “neither members of the al Qaeda terrorist network nor Taliban soldiers were entitled to the legal status of prisoners of war under the [Geneva Convention],” and therefore planned interrogation methods would not constitute a violation of the Geneva Convention, or war crime. Such an interpretation of the Geneva Convention was according to the interpretation insisted upon by Yoo and the Department of Justice in memos written to the President and Department of Defense (despite objections by the Department of State) on January 9, 2002, January 22, 2002,  February 1, 2002 and again on February 7, 2002.

Conclusion
Yoo concludes the letter by stating, “It is possible that an ICC official would ignore the clear limitations imposed by the Rome Statute, or at least disagree with the President’s interpretation of [the Geneva Convention]. Of course, the problem of the “rogue prosecutor” is not limited to questions about the interrogation of al Qaeda operatives, but is a potential risk for any number of actions that have been undertaken during the Afghanistan compaign… We cannot predict the political actions of international institutions.”