While there are various domestic laws as well as international conventions that protect the interests of the people who are held in custody, there arises a question as to which should be given the upper hand? Should it be the rights of the person as a member of society or should it be the various techniques that are used to extract information or what is assumed to be the truth?
In 2002, a set of legal documents prepared by the then Deputy Assistant Attorney General of the United States of America, Mr John Yoo advised the CIA, the United States Department of Defense and the President of the country on various aggravated and enhanced forms of interrogation techniques which will help in extracting information from the criminals.
These techniques which create mental and physical torment by prolonged sleep deprivation, forcing the prisoner to be kept on stress positions and waterboarding them might prima facie look like torture but could be legally permissible under a more lenient interpretation of the Presidential authority in the United States’ War on Terror.
The War on Terror or the Global War on Terrorism is an international military campaign launched by the then President of the US, George Bush in response to the September 11 attacks. It was targeted against Islamic fundamentalist organisations such the Islam State, the Al-Qaeda, the Taliban etc and any country that helps in the activities of these groups.
The memos written by Mr.Yoo were signed by the Assistant Attorney General and the head of the Office of Legal Counsel, Jay S Bybee. These memos were given as opinions to queries raised on the torture statute, 18 U.S.C 2340.
The Torture Memos, as they are called, were primarily referred to three documents. First, Standards of Conduct of Interrogation under 18 U.S.C 2340-2340A, a memorandum from the Assistant US Attorney General to the Counsel to the President as a response to a legal opinion asked on the UN Convention against Torture, 18 U.S.C section 2340 and the interrogation of Al-Qaeda operatives. Second, another memorandum addressed to the acting General Counsel of the CIA, called the Interrogation of the Al-Qaeda operative, again as a response to a legal opinion on 18 U.S.C section 2340. Third, a letter from Mr John Yoo which was a response to a legal opinion asked by the counsel of the President whether using such torture methods in the interrogation process could stand as a basis for prosecution in the International Criminal Court.
In response to whether a possible prosecution from the ICC could be brought against them, he said that since the US has not ratified the ICC statute and that the detainees were not given the legal status of prisoners of war, therefore the ICC did not have jurisdiction under the Geneva Convention.
The procedure advised in these memos were put to use in the interrogation of a few Al-Qaeda detainees as was testified by Alberto Gonzales, the then counsel to the President. As said by the author of the memos John Yoo, in a 2007 interview that there was an urgency to decide if the special interrogation techniques should be used in the interrogation of Abu Zubaydah to gather valuable intelligence before further attacks could occur.
In 2003, when Bybee was appointed as a federal judge, Yoo was the acting head of the Office of Legal Counsel. Sitting in this position he wrote a memo to the Department of Defense concluding that federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects. Five days after this the United States invaded Iraq and the Iraq war broke out.
In 2004, the torture of Abu Ghraib was leaked to the press which caused a lot of backpedalling activities by the Bush Administration including the withdrawal of the torture memos. It exposed to the world how the United States was using direct torture methods to gather information from their war prisoners.
The Torture Memos are proof of the fact that even though there are laws and codes which provide for basic protection of humans irrespective of acts, it comes down to the intention of the prosecutors as gaps can always be found just as it was here. Although Mr Yoo’s ideologies show high regards for national defence, it disregards the fact that the prisoners are also human beings and should be treated with at least minimum level of dignity as prescribed by the Rome Statute.