Harold Hongju Koh


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Eight years ago, as the assistant secretary of state for democracy, human rights, and labor, I testified to a United Nations committee in Geneva that the United States is "unalterably committed to a world without torture." I continued: "Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. In every instance, torture is a criminal offense. No official of the government—federal, state, or local, civilian or military—is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification for torture."

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That unequivocal statement was not asserted casually—it had been previously agreed to by dozens of government officials. None of us dreamed that within a decade, our government would openly practice torture and other forms of cruel, inhuman, or degrading treatment, and that many Americans would defend the policy.

Official cruelty has long been considered both illegal and abhorrent to our values and constitutional traditions. The commitment to due process and the ban against cruel and unusual punishment are legal principles of the highest significance in American life. There is no constitutional authority that licenses the president to authorize the torture and abuse of prisoners.

As a professor of law, I was therefore sickened by the Justice Department's August 2002 "torture opinion," which concluded that U.S. officials can order the torture of suspected terrorists with impunity. I have worked in both Democratic and Republican administrations, including as an attorney in the office of the Justice Department that drafted that opinion. I understand the tremendous pressures that government lawyers labor under. Nevertheless, I considered this opinion to be a disgrace, not only to that office, but to the entire legal profession.

When the opinion was written, the governing policy was zero tolerance of torture. The new opinion essentially asked, "How close to the line can we come when abusing people?" It narrowly defined torture as "[p]hysical pain ... equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Such a definition would exonerate torture techniques used by Saddam Hussein's security services, including electric shocks administered to the genitals and burning with blowtorches.

The opinion undermined the basic human rights principles set forth at Nuremberg. It also twisted the U.S. ratification of an international treaty against torture and cruel, inhuman, or degrading treatment, somehow arriving at the conclusion that the agreement condoned such abuses. In effect, the opinion licensed the executive branch to commit future Abu Ghraibs by degrading and dehumanizing detainees in U.S. custody, regardless of whether they hold any information of value in the war against terror.

The administration withdrew the memo in 2004, and has since retreated from some of its most extreme legal assertions. However, despite these gestures, it has still not backed down from the claim that torture in the shadows must remain an essential part of our antiterrorism policies. The Bush administration still argues that Congress has no power to regulate interrogation procedures, that past acts of waterboarding were legal, and that lawyers who object to the use of waterboarding are engaged in unpatriotic "lawfare."

We should be careful, of course, to avoid being diverted by sideshows. Of the thirty-four detainees who have died in American custody since the war on terror, none have died from waterboarding. The administration has employed a number of other interrogation techniques that clearly violate domestic and international law, and that still have not been explicitly banned in the most recent legislation passed by Congress. Although pundits obsess about the fictional "ticking-time-bomb" scenario, experienced interrogators confirm that torture rarely succeeds in extracting the truth, particularly under time pressure, and only ends up degrading both the victim and the perpetrator.

America is a country founded on human rights. Human rights define who we are as a nation and as a people. A ban against official cruelty is one of our most sacred values. If we condone it, we gain nothing, and lose our identity.

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Harold Hongju Koh is the dean and the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School. He previously served as an attorney in the Office of Legal Counsel, and as assistant secretary of state for democracy, human rights, and labor from 1998 to 2001.  
 
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