In a November 2 USA Today op-ed, former deputy assistant attorney general John Yoo criticized an amendment to the 2006 defense appropriations bill, proposed by Sen. John McCain (R-AZ), that prohibits "cruel, inhuman, or degrading treatment or punishment" of any prisoner in the custody of the U.S. government, and states that no prisoner "shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation." Yoo claimed the amendment's "only real effect would be to limit the interrogation of al-Qaeda terrorists," who "are not prisoners of war under [the] Geneva [Conventions]," and stated that "it would not have prevented the abuses at Iraq's Abu Ghraib prison, which were unrelated to interrogations." In fact, the Schlesinger report, compiled from an independent inquiry headed by former Defense Secretary James R. Schlesinger, explicitly states that abuses did occur during interrogations at Abu Ghraib -- meaning the McCain amendment would have applied.
Additionally, USA Today identified Yoo as "a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute," and noted simply that he "served in the Justice Department in 2001-03." USA Today did not disclose, however, that Yoo was a chief architect of the Bush administration's policy for handling enemy combatants and was reportedly a primary author of the August 2002 "torture memo," which argued that the president, as commander-in-chief, may order torture under certain circumstances.
The Senate approved McCain's amendment 90-9 on October 5, despite threats of a veto from the White House.
In his November 2 op-ed, Yoo wrote:
While the impulse behind the McCain amendment is worthy, it would not have prevented the abuses at Iraq's Abu Ghraib prison, which were unrelated to interrogations. Those abuses resulted from sadistic behavior on the "night shift" and were illegal. The Geneva Conventions -- which already prohibit the torture or cruel, inhumane or degrading treatment of prisoners -- clearly apply in Iraq.
McCain's only real effect would be to limit the interrogation of al-Qaeda terrorists. They are not prisoners of war under Geneva, but a stateless network of religious extremists who do not obey the laws of war, who hide among peaceful populations, and who seek to launch surprise attacks on civilian targets. They have no armed forces to attack, no territory to defend, and no fear of killing themselves in their attacks.
Media Matters for America previously noted that the Schlesinger report states that the photographed abuses that occurred at Abu Ghraib -- to which Yoo referred -- did not occur during interrogation. But the report also states that "some of the egregious abuses at Abu Ghraib which were not photographed did occur at interrogation sessions and that abuses during interrogation sessions occurred elsewhere."
Moreover, Yoo's claim that Al Qaeda detainees are not protected by the Geneva Conventions is not dispassionate legal analysis but is instead a defense of his own legal reasoning. As deputy assistant attorney general, Yoo was largely responsible for the legal reasoning behind President Bush's February 7, 2002, decision to exempt suspected Al Qaeda detainees from the protections of the Geneva Conventions. Whether the Geneva Conventions protect al-Qaeda detainees is an issue very much in dispute.
According to The New York Times and the Associated Press, Yoo helped to draft the August 1, 2002, "torture memo." According to a June 8, 2004, Washington Post article, the Justice Department memo "advised the White House that torturing al Qaeda terrorists in captivity abroad 'may be justified,' and that international laws against torture 'may be unconstitutional if applied to interrogations' conducted in President Bush's war on terrorism." The memo was eventually repudiated by the White House and the Justice Department.