Posts Tagged ‘Jay Bybee’

Authors of Bush torture memos to be cleared of misconduct

February 1, 2010
By Raw Story
Saturday, January 30th, 2010 — 7:15 pm

johnyoo Authors of Bush torture memos to be cleared of misconduct

The men who advised former President Bush to waterboard detainees and deprive them of sleep will be cleared of charges of professional misconduct by a Justice Department ethics report.

The report, which has yet to be released, states that Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor, showed “poor judgment,” but will not face legal action for their advocacy of harsh interrogation tactics.

Continues >>

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Torturers Should Be Punished

April 23, 2009

By Amy Goodman | Truthdig, April 22, 2009

Spokane, Wash. – George W. Bush insisted that the U.S. did not use torture.

But the four Bush-era Office of Legal Counsel memos released last week by the Obama administration’s Justice Department paint a starkly different picture. The declassified memos provided legal authorization for “harsh interrogation techniques” used by the Bush administration in the years following Sept. 11, 2001. They authorized (as listed in the Aug. 1, 2002, memo by then-Assistant Attorney General Jay Bybee) “walling … facial slap, cramped confinement, wall standing, stress positions, sleep deprivation, insects placed in a confinement box, and the waterboard.”

According to the American Civil Liberties Union, the OLC under Bush “became a facilitator for illegal government conduct, issuing dozens of memos meant to permit gross violations of domestic and international law.”

The memos authorize what the International Committee of the Red Cross called, in a leaked report, “treatment and interrogation techniques … that amounted to torture.”

These torture techniques were developed by two psychologists based in Spokane, Wash.: James Mitchell and Bruce Jessen. Their company, Mitchell Jessen & Associates, provided specialized training to members of the U.S. military to deal with capture by enemy forces. The training is called SERE, for Survival, Evasion, Resistance, Escape. Mitchell and Jessen, both psychologists, were contracted by the U.S. government to train interrogators with techniques they claimed would break prisoners.

They reverse-engineered the SERE training, originally developed to help people withstand and survive torture, to train a new generation of torturers.

The memos provide gruesome details of the torture. Waterboarding was used hundreds of times on a number of prisoners. The Bybee memo includes this Kafkaesque authorization: “You would like to place [Abu] Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him.”

After President Barack Obama said there should be no prosecutions, he was received with great fanfare at the CIA this week. Mark Benjamin, the reporter who originally broke the Mitchell and Jessen story, said when I questioned him about Obama’s position: “If you look at the president’s statements and you combine them with the statements of Rahm Emanuel, the chief of staff, and Eric Holder, the attorney general … you will see that over the last couple of days the Obama administration has announced that no one, not the people who carried out the torture program or the people who designed the program or the people that authorized the program or the people who said that it was legal-even though they knew that it frankly wasn’t-none of those people will ever face charges. The attorney general has announced that … the government will pay the legal fees for anybody who is brought up on any charges anywhere in the world or has to go before Congress. They will be provided attorneys … they have been given this blanket immunity … in return for nothing.”

Senate Intelligence Committee Chair Dianne Feinstein asked Obama to hold off on ruling out prosecutions until her panel finishes an investigation during the next six months. Though Obama promises to let the torturers go, others are pursuing them. Bybee is now a federal judge. A grass-roots movement, including Common Cause and the Center for Constitutional Rights, is calling on Congress to impeach Bybee. In Spain, Judge Baltasar Garzon, who got Chilean dictator Augusto Pinochet indicted for crimes against humanity, has named Bybee and five others as targets of a prosecution.

For years, people have felt they have been hitting their heads against walls (some suffered this literally, as the memos detail). On Election Day, it looked like that wall had become a door. But that door is open only a crack. Whether it is kicked open or slammed shut is not up to the president. Though he may occupy the most powerful office on Earth, there is a force more powerful: committed people demanding change. We need a universal standard of justice. Torturers should be punished.

Denis Moynihan contributed research to this column.

© 2009 Amy Goodman

How Bush’s Tortured Legal Logic Won

April 17, 2009

Robert Parry | Consortiumnews.com, April 17, 2009

Almost as disturbing as reading the Bush administration’s approved menu of brutal interrogation techniques is recognizing how President George W. Bush successfully shopped for government attorneys willing to render American laws meaningless by turning words inside out.

The four “torture” memos, released Thursday, revealed not just that the stomach-turning reports about CIA interrogators abusing “war on terror” suspects were true, but that the United States had gone from a “nation of laws” to a “nation of legal sophistry” – where conclusions on law are politically preordained and the legal analysis is made to fit.

You have passages like this in the May 10, 2005, memo by Steven Bradbury, then acting head of the Justice Department’s Office of Legal Counsel:

“Another question is whether the requirement of ‘prolonged mental harm’ caused by or resulting from one of the enumerated predicate acts is a separate requirement, or whether such ‘prolonged mental harm’ is to be presumed any time one of the predicate acts occurs.”

As each phrase in the Convention Against Torture was held up to such narrow examination, the forest of criminal torture was lost in the trees of arcane legal jargon. Collectively, the memos leave a disorienting sense that any ambiguity in words can be twisted to justify almost anything.

So, a “war on terror” prisoner could not only be locked up in solitary confinement indefinitely based on the sole authority of President Bush but could be subjected to a battery of abusive and humiliating tactics, all in the name of extracting some information that purportedly would help keep the United States safe – and it would not be called “torture.”

Some tactics were bizarre, like feeding detainees a liquid diet of Ensure to make “other techniques, such as sleep deprivation, more effective.” The memo’s sleep deprivation clause, in turn, allowed interrogators to shackle prisoners to an overhead pipe (or in some other uncomfortable position) for up to 180 hours (or seven-and-a-half days).

While shackled, the prisoner would be dressed in a diaper that “is checked regularly and changed as necessary.” The memo asserted that “the use of the diaper is for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee, and it is not considered to be an interrogation technique.”

Beyond the painful disorientation from depriving a person of sleep while chained in a standing position for days, the Justice Department memos called for prisoners to be forced into other “stress positions” for varying periods of time to cause “the physical discomfort associated with muscle fatigue.”

Tiny Boxes

The detainees also could be put into small, dark boxes where they could barely move (and in the case of one detainee, Abu Zubaydah, could have an insect slipped into his box as a way of playing on his fear of bugs), according to the Aug. 1, 2002, memo.

“The duration of confinement varies based upon the size of the container,” the May 10, 2005, memo added, with the smaller space (sitting only) restricted to two hours at a time and a somewhat larger box (permitting standing) limited to eight hours at a time and 18 hours a day.

Then, there were various slaps, grabs and slamming a prisoner against a “flexible” wall while his neck was in a sling “to help prevent whiplash.”

Prisoners also were subjected to forced nudity, sometimes in the presence of women, according to the May 10 memo.

“We understand that interrogators are trained to avoid sexual innuendo or any acts of implicit or explicit sexual degradation,” the memo said. “Nevertheless, interrogators can exploit the detainee’s fear of being seen naked.

“In addition, female officers involved in the interrogation process may see the detainees naked; and for purposes of our analysis, we will assume that detainees subjected to nudity as an interrogation technique are aware that they may be seen naked by females.”

Another approved technique was “water dousing” in which a detainee is sprayed with water that can be as cold as 41 degrees Fahrenheit for up to 20 minutes. Slightly warmer water could be used to douse a prisoner for longer periods of time.

Both the 2002 and 2005 memos permitted the “waterboard,” a technique that involves covering a prisoner’s face with a cloth and pouring water on it to create the panicked sensation of drowning. The interrogators also were authorized to prevent a detainee from trying to “defeat the technique” by thrashing about or trying to breathe from the corner of his mouth.

“The interrogator may cup his hands around the detainee’s nose and mouth to dam the runoff, in which case it would not be possible for the detainee to breathe during the application of the water,” the May 10 memo reads. “In addition, you have informed us that the technique may be applied in a manner to defeat efforts by the detainee to hold his breath by, for example, beginning an application of water as the detainee is exhaling.”

At least since the days of the Spanish Inquisition, waterboarding has been regarded as torture. The U.S. government prosecuted Japanese soldiers who used it against American troops in World War II. But the legal reasoning of the Bush administration’s memos transformed waterboarding into an acceptable method of interrogation.

Lawyer-Shopping

Although the four released memos included the most famous one – from Aug. 1, 2002, which provided the initial legal cover for abusive interrogations – the three others from May 2005 may be more significant in destroying the legal cover that President Bush and his senior aides have hidden behind.

Their claim has been that they were simply operating within legal parameters set by lawyers at the Justice Department’s Office of Legal Counsel, which is responsible for advising Presidents on the limits of their authority. In other words, professional lawyers provided objective legal advice and the administration simply followed it.

But that claim now collides with the reality that other Justice Department lawyers – from 2003 to 2005 – overturned the initial memo and resisted its reimplementation until they were ousted. In effect, the Bush administration appears to have gone lawyer-shopping for attorneys who would craft opinions that the White House wanted.

Assistant Attorney General Jay Bybee signed the original Aug. 1, 2002, “torture” memo and other opinions granting expansive presidential powers (drafted by his deputy John Yoo).

However, Bybee quit in 2003 to accept President Bush’s appointment of him as a federal appeals court judge in San Francisco, and his successor as head of the Office of Legal Counsel, Assistant Attorney General Jack Goldsmith, withdrew many Bybee-Yoo memos as legally flawed.

Goldsmith’s actions angered the White House, particularly Vice President Dick Cheney’s legal counsel David Addington. In a 2007 book, The Terror Presidency, Goldsmith described one White House meeting at which Addington pulled out a 3-by-5-inch card listing the OLC opinions that Goldsmith had withdrawn.

“Since you’ve withdrawn so many legal opinions that the President and others have been relying on,” Addington said sarcastically, “we need you to go through all of OLC’s opinions and let us know which ones you will stand by.”

Though supported by Deputy Attorney General James Comey, Goldsmith succumbed to the White House pressure and quit in 2004. Still, despite Goldsmith’s departure, Comey and the new acting head of the OLC, Daniel Levin, resisted restoring the administration’s right to use the harsh interrogation techniques.

That didn’t occur until White House counsel Alberto Gonzales became Attorney General in 2005 and made Bradbury the acting chief of the OLC. After signing the three “torture” memos in May, Bradbury was rewarded with Bush’s formal nomination in June to be Assistant Attorney General for the OLC (although he never gained Senate confirmation).

Comey Departs

With the OLC reaffirming the administration’s interrogation techniques, Comey’s days were numbered.

Though having been a successful prosecutor on past terrorism cases, such as the Khobar Towers bombing which killed 19 U.S. servicemen in 1996, Comey had earned the derisive nickname from Bush as “Cuomey” or just “Cuomo,” a strong insult from Republicans who deemed former New York Gov. Mario Cuomo to be excessively liberal and famously indecisive.

On Aug. 15, 2005, in his farewell speech, Comey urged his colleagues to defend the integrity and honesty of the Justice Department.

“I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice,” Comey said. “It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something – whether in a courtroom, a conference room or a cocktail party – and find that total strangers believe what you say next.

“That gift – the gift that makes possible so much of the good we accomplish – is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before – most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.

“Our obligation – as the recipients of that great gift – is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it. The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them.

“The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all. I have tried my absolute best – in matters big and small – to protect that reservoir and inspire others to protect it.”

Though the full import of Comey’s comments was not apparent at the time, it now appears that he was referring to the legal gamesmanship that Bradbury and others had used to circumvent American laws and traditions to enable the Bush administration to engage in torture.

In releasing the four memos on Thursday, President Barack Obama and Attorney General Eric Holder repeated their rejection of the Bybee-Yoo-Bradbury legal theories, but also stipulated that they would oppose any legal action against the CIA interrogators who abused detainees under the Bush administration’s legal guidance.

Neither Obama nor Holder spoke specifically about possible legal accountability for Bush’s compliant lawyers — or for Bush and his top aides who oversaw the torture policies and picked the lawyers. However, Obama recommended a focus on the future, not the past.

Calling the period covered by the four memos a “dark and painful chapter in our history,” Obama added that “nothing will be gained by spending our time and energy laying blame for the past.”

The lack of accountability for Bush and his lawyers, however, may mean that future Presidents will follow Bush’s lead and assign some clever legal wordsmiths the job of finding ways around criminal statutes, international treaties and the U.S. Constitution.

If legal language can be interpreted any way that a President wishes – and if the U.S. Supreme Court is stocked with like-minded judges – then laws will no longer protect anyone, whether a suspected Middle Eastern terrorist or an American citizen.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there. Or go to Amazon.com.

Prosecuting the Bush Team?

March 4, 2009

Robert Pallitto | Foreign Policy In Focus, March 2, 2009

In the months following September 11, 2001, lawyers in the White House and the Justice Department interpreted U.S. and international law to provide legal support for the administration in its “war on terror.” With regard to interrogation of terror suspects, John Yoo, David Addington, Jay Bybee, and others justified the use of such harsh and dangerous tactics as waterboarding and stress positions. In a 2002 memo, they advised that only actions causing severe pain equivalent to “organ failure” would violate the U.S. torture law. Moreover, the memo stated that only if they acted with the specific intention to cause such pain — rather than acting with the primary goal of obtaining information — would the interrogators violate the law. Finally, the memo argued that these interrogations were rooted in an inherent executive power to protect the nation. As such, other branches of government could not review or limit such policies.

The architects of the Bush administration’s torture policy clearly wanted to facilitate the use of torture tactics and to insulate themselves from future civil and criminal liability. In the words of legal scholar Jeremy Waldron, they were using the U.S. legal definition of torture as “something to game, a determinate envelope to push.”

A new administration is already taking steps to reverse Bush policies on torture and detention. Will it go the next step and pursue criminal prosecutions of Bush legal advisors?

The Nuremberg Precedent

Scott Horton has suggested that the Reich Justice Ministry cases, which were tried at Nuremberg after World War II, furnish precedent for trying Addington, Yoo, and others. The Reich Ministry cases involved prosecution of judicial officials who crafted policies and justifications for detention and killing of Jews, Roma, and other groups targeted by the Nazi regime. Also included in these prosecutions were judges who subverted the legal process by allowing high-ranking executive branch officials to direct the judges to reach certain results. Horton notes that the rulings in these cases established “a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.”

To be sure, Bush’s legal advisors were, to say the least, “dismissive” toward international humanitarian law. To take one example, White House Counsel Alberto Gonzales called the Geneva Conventions “quaint” and “obsolete.” This attitude wasn’t limited to international law. The Bybee memo cited a federal health care statute to define the term “severe pain” as that term is used in the torture law. Of course, it makes no sense to use a statute concerning payment for medical treatment to authorize inflicting pain on a person. This definitional stretch, which would be laughable in a less serious context, is an indication of the unrestrained determination to find and use anything, no matter how inapposite or farfetched, to take the administration where it wanted to go with its torture policies. Federal court rules allow judges to sanction attorneys for making frivolous arguments. Such a “severe pain” argument should be subject to similar sanction.

The Bush advisors were wrong on the law when they suggested that executive torture policies were unreviewable, and they were wrong in their interpretation of the U.S. criminal law prohibiting torture (they admitted as much when they repudiated the 2002 torture memo two years later). In Hamdan v. Rumsfeld (2006), the U.S. Supreme Court specifically rejected the claim that prisoner treatment need not comply with the Geneva Conventions. On this issue, the Bush team clearly misinterpreted the law and then broke it. But how do we address the damage done to our democratic and constitutional values, to our standing in the world? Should criminal prosecutions be part of that effort, brought either in U.S. federal court or in an international tribunal?

Criminal Prosecutions

U.S. law specifically prohibits torture. It’s a federal crime to commit torture, and the Bush advisors sought to interpret that law in a way that would permit such practices as waterboarding. The advisors’ actions could be considered a conspiracy to violate the torture law. They themselves didn’t engage in prohibited acts of torture, but they made it easier for others to do so.

The problem here is that the actions involved were themselves interpretations of law: State officials were making arguments about what the law meant and suggesting that it should be read narrowly. Horton suggests that lawyers aren’t permitted, in such a case, to “get it wrong” and then be excused for doing so. In the Reich Justice Ministry cases, the judicial officials made decisions and created policies that were later found to be illegal, and many of those officials were convicted of war crimes at Nuremburg. The important difference, however, is that the Reich Justice Ministry officials were complicit in a criminal regime. The structural rules of the government were illegitimate, created by a chief executive (Hitler) to preserve and increase his own power.

In the U.S. case, the structuring rules of government were not illegal. The legislature and the courts continued to function according to the constitution, even though the president tried to shield his actions and those of his administration from review. In several instances — authorizing military action against Iraq, detainee treatment, denial of court review to detainees, immunity for warrantless wiretapping — Congress approved presidential actions, thus making it harder to argue that the government wasn’t operating according to valid law. In fact, Congress even voted to confirm Jay Bybee to the U.S. Court of Appeals for the Ninth Circuit after he left the Bush administration. In short, the government’s actions were illegitimate but the government itself was, unlike that of Nazi Germany, legitimate.

The case for a violation of international law might seem clearer, in a sense. Instead of defining a particular law narrowly as they did with U.S. torture statute, the Bush advisors said that a particular body of international law (the Geneva Conventions) did not apply at all. In other words, with regard to international law, the advisors denied the applicability and constraining force of a law altogether. Moreover, the Supreme Court expressly denied this administration claim in Hamdan. Again, however, the problem here concerns the provision of legal duties or advice as a crime, and specifically with the “fit” of the Nuremburg precedent. The court there held state officials liable for formulating policies and rendering decisions that assisted in a genocidal project and gave obeisance to a plan of government under which, according to the court opinion in the Justice Ministry cases, “Hitler did, in fact, exercise the right assumed by him to act as Supreme Judge, and in that capacity in many instances he controlled the decision of the individual criminal cases.” The court reasoned that this construction of German law left Nazi officials susceptible to prosecution under international law. In the U.S. case, however, the wrongdoing that occurred was done against the background of a political and legal order whose legitimacy wasn’t in doubt. The tripartite federal governmental system specified by the constitution operated throughout the period in question, and this fact distinguishes the two situations. This isn’t to excuse or to diminish what occurred between 2001 and 2008 in the United States. But the Nuremberg case doesn’t furnish an apt precedent for prosecution of the authors of the Bush torture policies.

Political Obstacles

In addition to the legal obstacles to prosecuting the architects of Bush’s torture policies, there are significant political obstacles as well. The United States refused to recognize the jurisdiction of the International Criminal Court during the Bush years; Bush revoked the signatory status. Obama has indicated an interest in resigning the ICC agreement, but would he then deliver members of the previous administration to that court for prosecution? The likely partisan political tension and fallout from any prosecution, domestic or international, would create a disincentive for prosecution, especially for a pragmatic, centrist president. To be sure, nothing in Obama’s executive orders thus far suggests that he intends to review past actions of the previous administration for possible criminal sanctions. The executive order relating to torture is written with a prospective focus, declaring that from Inauguration Day forward the torture policies of the Bush administration will no longer be followed, and that the standards the rest of the world adheres to, including the Geneva Conventions, will govern interrogation of terror suspects. While this statement is a welcome return to the rule of law, it leaves the past actions of Bush’s advisors unaddressed.

On February 10, the Obama administration surprised some observers by indicating in court that it would adopt the past administration’s posture in a torture-related case. Jeppesen Dataplan v. Mohamed is a suit against the flight planning company that allegedly facilitated the rendition of a terror suspect to a secret torture location. The Bush administration intervened and convinced the trial court to dismiss the suit, claiming that the case involved state secrets and would threaten national security if it were allowed to proceed. At oral argument in the Ninth Circuit, Attorney General Holder argued that the dismissal should be affirmed, rather than reversing the course set previously by the Bush Justice Department. The state secrets privilege is a court-created doctrine that allows the executive branch to terminate litigation simply by claiming that a particular dispute involves national security matters. Critics of excessive executive power hoped that the new administration would at least modify the scope of the privilege, but that hasn’t happened yet.

Future of Prosecution

Hannah Arendt explored the problem of state crimes in her famous report on the 1961 trial of Adolf Eichmann in Jerusalem. Acting according to German law, Eichmann oversaw the transport of Jews and others to concentration camps as part of his administrative position in the German government. Thus, his official responsibility in the time period of the “final solution” was to facilitate genocide. Arendt points out that Eichmann’s trial presented certain novel legal problems: He was a bureaucrat in a criminal regime, following orders to commit monstrous evil. In view of the Nazis’ genocidal project, Eichmann’s conviction and execution was a foregone conclusion, but the problem of prosecuting state-administered torture and killing remains half a century later. Today, with the issue of criminal conduct by members of the Bush administration, Arendt’s question presents itself somewhat differently. Yoo, Addington, Bybee, and others sought to maneuver around legal and political obstacles within a regime outwardly functioning under rule of law. It was they who provided the chief executive with advice and arguments for the policies he wished to implement.

In view of the problems indicated here, it is unlikely that a criminal prosecution of the Bush advisors for their role in propagating torture will occur. This isn’t to say, by any means, that their behavior was lawful. Rather, it’s a recognition of the realities of the situation, both political and legal. Also, the officials themselves worked to shield themselves from liability, helping to create some of the obstacles facing the nation now as we attempt to reckon with the lawlessness of the past administration.

Certainly, the lessons of the past eight years provide a good reason to resign the ICC agreement. Also, the ethics investigations currently pending against individual officials are important, appropriate, and laudable. While they will yield less in the way of punishment, they also face none of the roadblocks indicated above. These roadblocks only underscore the final, painful lesson: Failure to stand up to an overreaching executive branch compounds the damage that branch can inflict on our system of government by making it more difficult ultimately to hold executive officials accountable.

Robert Pallitto is an assistant professor of political science at Seton Hall University, a former trial attorney, and a contributor to Foreign Policy In Focus. He is co-author, with William Weaver, of Presidential Secrecy and the Law (Johns Hopkins University Press, 2007), and he is currently working on a book about torture in U.S. history.

Secret ‘torture memo’ gave legal cover to interrogators who acted in ‘good faith’

August 2, 2008

Jason Leopold | Online Journal, July 31, 2008

waterboard3-small.jpg


A Justice Department legal opinion issued in August 2002 advised the CIA that its interrogators would not be prosecuted for violating anti-torture laws as long as they acted in “good faith” while using brutal techniques to obtain information from suspected terrorists, according to a previously undisclosed memo released publicly last Thursday.

The closely guarded Aug. 1, 2002, memo provided the Bush administration with the legal framework to use “alternative interrogation methods” against suspected terrorists captured in the war on terror.

The heavily redacted document, obtained by the American Civil Liberties Union under a Freedom of Information Act request, was signed by then Assistant Attorney General Jay Bybee and specifically outlined approved methods the CIA could use, such as waterboarding, during interrogations. Waterboarding has been regarded as torture since the days of the Spanish Inquisition.

“To validate the statute, an individual must have the specific intent to inflict severe pain or suffering,” the Aug. 1, 2002 memo says. “Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture.”

The Bybee memo was written by John Yoo, a former deputy attorney general at the DOJ’s Office of Legal Counsel (OLC), and preceded a second August 2002 legal opinion about CIA interrogation methods leaked to the media in 2004. Both memos were later rescinded.

The Aug. 1, 2002, legal opinion was based on a statute governing health benefits when Yoo provided the White House with a legal opinion defining torture, according to a former Justice Department official.

Yoo’s legal opinion stated that unless the amount of pain administered to a detainee results in injury “such as death, organ failure, or serious impairment of body functions” than the interrogation technique could not be defined as torture.

Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, Yoo wrote, therefore was not considered to be torture.

“That statute defined an ’emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function,” Jack Goldsmith, the former head of OLC, wrote in his book, The Terror Presidency

“The health benefits statute’s use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like. . . . OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark.”

Yoo, who now teaches at the University of California at Berkeley, also drafted a March 14, 2003 document, nearly identical to the August 2002 memo he authored, that essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners. The ACLU under a FOIA request also obtained that document earlier this year.

Continued . . .

Bush’s Legacy of Torture

July 31, 2008

Truthdig, posted July 28, 2008

By Eugene Robinson

I still find it hard to believe that George W. Bush, to his eternal shame and our nation’s great discredit, made torture a matter of hair-splitting, legalistic debate at the highest levels of the United States government. But that’s precisely what he did.

Three previously classified administration memos obtained last week by the American Civil Liberties Union add to our understanding of this disgraceful episode. The documents are attempts to justify the unjustifiable—the use of brutal interrogation methods that international agreements define as torture—and keep those who ordered and carried out this dirty business from being prosecuted and jailed.

The memos don’t call it torture, of course. Heavily redacted before being surrendered to the ACLU under a Freedom of Information Act lawsuit, the documents refer euphemistically to “enhanced techniques” of interrogation. Changing the name doesn’t change the act, however. One memo, written in 2004, specifically makes clear the administration’s view that “the waterboard” is an acceptable way to extract information.

Waterboarding, a technique of simulated drowning, is considered torture virtually everywhere on earth except in the Bush administration’s archive of self-exculpatory memos, directives and opinions.

The most stunning of the memos—written in August 2002 by Jay Bybee, who was head of the Justice Department’s Office of Legal Counsel—makes the incredible claim that unless a torturer has the “specific intent to inflict severe pain or suffering,” no violation of U.S. laws against torture has occurred. Bybee, since appointed to the federal bench, wrote that the torturer needed only the “honest belief” that he was not actually committing torture in order to avoid legal jeopardy. Oh, and Bybee added that it wasn’t even necessary for that belief to be “reasonable.”

The memo notes that U.S. torture statutes outlaw the infliction of severe mental pain, as well as physical pain. It acknowledges that “the threat of imminent death” is one of the specific acts that can constitute torture. Somehow, though, the administration pretends not to understand that strapping a prisoner down and pouring water into his nose until he can’t breathe constitutes a death threat—regardless of whether the interrogator intended to stop before the prisoner actually drowned.

Perhaps that question was dealt with in the nine-tenths of the memo that was redacted before the administration handed it over to the ACLU. The memo never would have been released at all if the government hadn’t been ordered to do so by a federal judge.

The whole thing would be laughable if it were not such a rank abomination. No government obeying the law needs a paper trail to absolve its interrogators of committing torture. Conversely, a government that produces such a paper trail has something monstrous to hide.

It is not difficult to avoid violating federal laws and international agreements that prohibit torture. Just don’t torture people, period. The idea that there exists some acceptable middle ground—a kind of “torture lite”—is a hideous affront to this nation’s honor and values. This, perhaps above all, is how George Bush should be remembered: as the president who embraced torture.

I wouldn’t be surprised if, as he left office, Bush issued some sort of pardon clearing those who authorized or carried out “enhanced techniques” of interrogations from any jeopardy under U.S. law. International law is something else entirely, however, and I imagine that some of those involved in this sordid interlude might want to be careful in choosing their vacation spots. I’d avoid The Hague, for example.

Barack Obama has stood consistently against torture. John McCain, who was tortured himself as a prisoner of war in Vietnam, has denounced torture as well—and, although he voted against restraining the CIA with the same no-exceptions policy that now applies to military interrogators, he has been forthright in saying that waterboarding is torture, and thus illegal. On Inauguration Day, whoever wins, this awful interlude will end.

The clear and urgent duty of the next president will be to investigate the Bush administration’s torture policy and give Americans a full accounting of what was done in our name. It’s astounding that we need some kind of truth commission in the United States of America, but we do. Only when we learn the full story of what happened will we be able to confidently promise, to ourselves and to a world that looks to this country for moral leadership: Never again.

Eugene Robinson’s e-mail address is eugenerobinson(at)washpost.com.

© 2008, Washington Post Writers Group


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