FREE SPEECH ZONE | St. Thomas Law Professor Robert Delahunty's "Torture Memos"

Roger Cuthbertson explains the terrible significance of the "torture memos" written by former Bush Attorneys Robert Delahunty and John Yoo to St. Thomas Director of Communications Chato Hazelbaker on August 24, 2009, the first day of classes at the St. Thomas University's School of Law.


Cuthbertson and St Thomas alum Bob Heberle were leading a group of citizens against torture that included Minnesotans from Amnesty International. On the same day that disturbing details from the 2004 CIA Inspector General's Report were released nationally revealing mock executions, threats to use power drills on prisoners and threats to kill prisoner's families, Attorney General Eric Holder announced a special prosecutor to investigate the abuses.

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At the same time a Minnesota group of concerned citizens called on the St. Thomas Law School to explain publicly why and how they hired Delahunty, an author of the torture memos that gave rise to the abuses. Delahunty himself has repeatedly refused to appear and explain his expansive views about presidential war powers in a memo he co-wrote with John Yoo [that has since been repudiated] allowing Bush to ignore the Geneva Conventions.


Exchange of letters between Roger Cuthbertson, Robert Heberle and St. Thomas University School of Law Dean Thomas M. Mengler,


Robert Heberle's initial letter, sent to the Star Tribune and University of St. Thomas School of Law Dean Thomas M. Mengler, May 30, 2009

The University of St. Thomas Law School's mission statement states that "The University of St. Thomas School of Law, as a Catholic law school, is dedicated to integrating faith and reason in the search for truth through a focus on morality and social justice." Yet this school hired Robert Delahunty, a co-author of the "Torture Memo." Bill Moyer's show on PBS Friday, May 29, displayed the "Torture Memo" from John Yoo's office in the Department of Justice. Robert Delahunty's name was clearly included under John Yoo's. For some reason Robert Delahunty is never given credit as a co-author of these memos nor is the obvious contradiction between the law school's Mission Statement and hiring acknowledged.

University of St. Thomas School of Law Dean Thomas M. Mengler's response to Robert Heberle, 6/22/09

Dear Mr. Heberle:
Thank you for copying the School of Law on your recent email to the Star Tribune regarding Professor Robert Delahunty. The memo used as a photo illustration in the PBS special with Bill Moyer's dealt with the definition of "enemy combatants." It is unfortunate this was the memo pictured, because this memo is not one of the "torture memos" by most definitions.

Delahunty was a co-author of only one of several memos that were publicized in the spring of 2004. The memo he co-authored dealt with the applicability of the Geneva Conventions to al Queda and the Taliban. He took the position that the Geneva Conventions do not apply as a matter of law to al Queda, a pont of view shared by current Attorney General Eric Holder. Delahunty was not involved in any way with the memo that has caused the most controversy - the memo on the legality of torturing enemy combatants.

Furthermore, Delahunty was not at the Justice Department when the key memos were written. In January 2002, Delahunty left the Justice Department for the White House where he was on loan for 18 months While Delahunty was in the White House, not the Justice Department, is when many of the questions regarding interrogatoins tactics were answered. Most of the memos imprecisely lumped as the "torture memos" were written between January and August of 2002. The key memo regarding interrogation tactics was written on March 12, 2002.

Delahunty has served the University of St. Thomas School of Law, four presidential administrations, and other institutions with distinction. I would encourage you to view his impressive academic and professional record on the School of Law website at www.stthomas.edu/law and lists of the "torture memos" can be found at the American Civil Liberties Union website at: www.aclu.org/safefreg/general/olc_memos.html.

Sincerely,
Thomas M. Mengler
Dean and Ryan Chair in Law


Roger Cuthbertson's letter to University of St. Thomas School of Law Dean Thomas M. Mengler, 7/9/09



Dear Dean Mengler:

I am a friend of Bob Heberle. I was privy to the exchange of letters between Heberle and yourself. I am astonished at the illogic of your defense of Robert Delahunty. You state that, Delahunty’s… “memo was not one of the ‘torture memos’ by most definitions. He (Delahunty) took the position that the Geneva Conventions do not apply as a matter of law to al Queda….. Delahunty was not involved in anyway with the memo that caused the most controversy – the memo on the legality of torturing enemy combatants.”



While it may be true that Delahunty’s memo was not one of the more recently disclosed memos that have been popularly called ‘the torture memos’, it is obvious that the memo by Yoo and Delahunty of January 9, 2002 to William J. Haynes II was, nonetheless, a memo of vital importance to the efforts in the Justice Department to legitimize the use of torture. I would call this Jan 9 memo a cornerstone memo of all the torture memos. Without this memo, claiming that the international treaties and laws of war, including the Geneva Conventions and U.S federal laws, do not apply, none of the later torture memos would have a place. Some of the more recent ‘torture memos’ disgustingly detail, for example, just how long you can keep a prisoner in a ‘stress position’ and still stay within certain ‘acceptable’ limits. The green light for this grisly business was given earlier by Delahunty, Yoo, and others.

In the Jan 9 Delahunty memo, arguments are made that the international treaties including the Geneva Conventions do not apply to the conduct of U.S. forces in the conflict in Afghanistan, because:

1. Organizations such as al Qaeda and the Taliban militia are not nation states and not parties to the Geneva agreements.

2. Common article 3 only applies to conflicts between states that are parties to the Geneva Conventions or to civil wars.

3. (I hope I am being fair in extrapolating here, in common sense language.) There being no category to describe the situation in Afghanistan, Jan 9, 2002, where it is not just a war between ‘High Contracting Parties’ and not just a civil war, therefore, the Geneva Conventions and other international rules regarding treatment of prisoners can be ignored

4. The president is given, by the U.S. Constitution, war powers that need not be bound by international law or federal law. In other words, the U.S. Constitution supposedly exempts the U.S. President from having to act lawfully in a time of war.

Why would anyone, especially a university professor, ‘dance around the head of a pin’ to make arguments in favor of allowing inhuman and undignified treatment of prisoners of war? It is immoral and counter productive to do so. It is counter productive because:

It is wrong to mistreat defenseless prisoners. We need to be the world that we want.

You get false, misleading, and useless intelligence as the result of torturing people.

Instead of gaining prestige and friends in the international community, you turn the world against you.

By mistreating the prisoners under your control, you can expect harsh treatment of American prisoners in return. Indeed, there were no proven instances of mistreatment of American prisoners in Iraq, until after the photos of Abu Graib came out. It was then that you had beheading and mistreatment of Americans in Iraq.

Once routine use of torture is established, torture will not just be used against the guilty. Hundreds of innocent people have been tortured by U.S. authorities in the current conflicts in Iraq and Afghanistan.

The scenario of saving millions from a terrorist act by torturing one person has a near zero

chance of occurring. Even if such an occurrence did emerge, individuals on the scene might take extraordinary action without having a general policy legitimizing torture.

Torture has a corrupting effect on the perpetrator.

The so called enhanced interrogation techniques, which have been so much used by the U.S. in the current conflicts, are, by international law, torture. Any cruel or inhuman treatment is torture. There are no exceptions; Prisoners have reported that the techniques designed to break their minds were more terrible to endure than physical punishment.



If the United States wants to argue that its policies of treatment of prisoners (which has even included torturing non-combatants to death in order to obtain ‘intelligence’) is ok, because we have decided that the old rules don’t apply to this new kind of war on terror, THEN WE MUST GET THE INTERNATIONAL COMMUNITY TO AGREE WITH US by revising the Geneva Conventions and other international treaties to which we have subscribed. One party to an agreement (the U.S.) cannot change the rules, all by itself.



Many legal scholars disagree with Delahunty’s legal arguments for the legitimacy of circumventing international agreements for the humane treatment of prisoners. The support for Delahunty and Yoo’s most extreme recommendations are not found in explicit print in the international treaties themselves. They are the result of tedious and far fetched interpretations by Delahunty and Yoo. These interpretations are meant to make an end run around the spirit and substance of the civilized documents that have been designed to reduce the injustices and indignities of war. In this regard, I would like to remind you that Steve Miles, University of Minnesota medical ethics professor and author of the book, Oath Betrayed: America’s Torture Doctors, has repeatedly offered to debate Mr. Delahunty regarding his assertions about the constitutional legality of U.S. policies of prisoner treatment. Mr. Delahunty has turned down these offers. If Mr. Delahunty is so smart and so right, what is he afraid of in a debate?



The amount of wartime power Robert Delahunty claims for the President seems out of proportion. If we were fighting a war to defend the U.S against an overwhelming enemy invasion, reasonable people might be willing to grant the President temporary powers such as those that Delahunty would have. But the war against Iraq is an illegal, unnecessary, aggressive war promoted by lies. I believe Delahunty, and others in the office of legal counsel of the justice department, have culpability for advising the President that the starting of wars in Afghanistan and Iraq would be legal. For example, Delahunty argued, “The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.”3 Under the Geneva Conventions and other international law, there is no legitimacy for a preemptive war. A preemptive war is a war crime, as much as torture is a war crime.



You defend Delahunty’s point of view that the Geneva Conventions do not apply as a matter of law to al Queda by saying that this view is shared by the current Attorney General, Eric Holder. I do not think that Holder’s nuanced and evolving point of view is exactly the same as Delahunty’s. Even if the two were found to be in total agreement, I would have to say both of them have taken immoral and possibly criminal actions towards policy building. Two wrongs do not make a right.



Finally, you defend Delahunty by saying that “Delahunty was not at the Justice Department when the key memos were written. In January 2002, Delahunty left the Justice Department for the White House, where he was on loan for 18 months. While Delahunty was in the White House, not the Justice Department, is when many of the questions regarding the interrogations tactics were answered. Most of the memos imprecisely lumped as the ‘torture memos’ were written between January and August of 2002. The key memo regarding interrogation tactics was written on March 12, 2002.” This argument that Delahunty couldn’t have done it, because he wasn’t there, is disingenuous, to say the least. First of all, I will say, again, that Delahunty’s memo of Jan 9, 2002 was the key torture memo – the cornerstone torture memo. And where was Delahunty, when he was not in the Justice Department? He was even closer to the President, in the White House. Are we to believe that there was no continuity and no communication between the two offices? There is only a time period of 3 months between what I regard as the key torture memo and what you regard as the key memo. It seems reasonable to suppose that the previous work of Delahunty would have been very much considered by the Justice Department during this time, and that there was communication between Delahunty and the members of the Justice Department, not to mention the inside influence that Delahunty had with the President at the time. We don’t have the records of what Delahunty was saying to the President, but we do know that the war policies and pronouncements of Bush appeared to be a reflection of Delahunty’s arguments.



I think that Professor Delahunty should be tried for war crimes. In the meantime, I think there should be hearings to consider disbarring Mr. Delahunty. While I don’t seriously expect the University of St. Thomas to take the lead in either of these two actions, which would be outside the normal domain of the school, I don’t see why you are so determined to defend him. What kind of moral leadership is being exerted when the dean of a prestigious university supports a professor who justifies torture? Having been a lifelong proponent of academic freedom and tenure for professors, I have difficulty bringing myself to the view that he should be fired, before being found guilty of a crime. On the other hand, instead of defending him, why doesn’t the University bring whatever attention that it can to the task of persuading Professor Delahunty to leave the University?



Sincerely yours,

Roger Cuthbertson


Bob Heberle's reply to University of St. Thomas School of Law Dean Thomas Mengler, 7/13/09


Dear Dean Mengler,

Thank you for your June 22, 2009 studied response to a copy of the article that I had sent to the Star Tribune. My letter was sent in response to a Bill Moyers Journal PBS program on May 29, 2009.

I regret that you apparently missed the point of my letter to the editor. I commented on the apparent failure of St. Thomas Law School to fulfill its Mission Statement: The University of St. Thomas School of Law, as a Catholic law school, is dedicated to integrating faith and reason in the search for truth through a focus on morality and social justice.

On page 36 of the January 9, 2002, Yoo/Delahunty memo they cite “In Brown v United States12 U.S. (8 Crunch) 110 (1814), Chief Justice Marshall again stated that customary international law “is guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed, to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.” 113 * Yoo and Delahunty seem to grant the “sovereign”(president) the right to disregard the “precept of morality”.

I profess no legal skills but do claim an intense devotion to my values that have been shaped over many years by Catholic tradition including 16 years of parochial schools. I was taught we are all “Children of God” and that every life is precious and entitled to humane treatment. I find it strange and perhaps hypocritical for an institution founded to teach “a focus on morality and justice” to hire a professor who would recommend exempting any individual from these God-endowed rights. Torture does not honor those rights to humans as determined by any society, but especially ours that claims a Judeo-Christian tradition and a university that proclaims it.

I believe your argument about dates to be specious and irrelevant. By your own statement, Delahunty “…took the position that the Geneva Conventions do not apply as a matter of law to Al Queda,..” The later “torture memos” that delineated the specific methods of torture sanctioned by James Bybee, John A. Rizzo obviously expand on what John Yoo and Robert Delahunty had already granted: enemy combatants were apparently not human and therefore did not deserve to be accorded the rights outlined in the Geneva Conventions. Clearly Prof. Delahunty did not consider it vital to acknowledge that torture is immoral and a violation of social justice regardless of political or citizen status.

As a graduate of St.Thomas, I am disappointed that you would continue Prof. Delahunty’s term of employment and laud him for having worked in those “institutions with distinction.” The quality of his opinions given during his work for the Bush administration is obviously debatable, regardless of whether or not he has served St. Thomas with distinction.

Finally, being proud of my German ancestry, I have for years been aware of the shame that nation and my relatives have endured because their ancestors’ silence during the Nazi years. It is clear from the judgment rendered at the Nuremberg Trials that conscience still takes precedence over “following orders.” To be faithful to that cause, and to avoid suffering the same shame, I continue to speak out against any institution or nation that remains silent when its core moral values are ignored.

At least, Dean Mengler, I would hope you would concede the mistake made when Dr. Delahunty was hired and persuade him to publicly apologize (as Robert McNamara did - too many years too late) and recognize his failure to promote conscience over the letter of the law.

Sincerely,

Robert A. Heberle, 1959, 1962

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