The newly released torture memos reveal the comprehensive and premeditated character of America’s torture program. It also highlights the shameful role of now Judge Jay Bybee, who distorts the current law in the area to justify a clear war crime. In the meantime, former administration officials have called the release a danger to national security. I discussed the memos onthis segment of Countdown.
Bybee struggles to justify waterboarding despite the fact that it has uniformly been treated as torture. Indeed both the Red Cross and Bush officials have defined it was torture. Most recently, Richard Armitage conceded that the Bush Administration did engage in clear torture and said that he should have resigned in light of such allegations.
Bybee has difficulty with rationalizing a war crime. This is all the most difficult since the Administration admitted that torture includes mental harm caused by or resulting from “the threat of imminent death.” In an interesting concession, a footnote in one of the memos acknowledges that “For purposes of our analysis, we will assume that the physiological sensation of drowning associated with the use of the waterboard may constitute a ‘threat of imminent death’ within the meaning of sections 2340-2340A.”
Bybee virtually treats suffering as the same as pain despite the prohibition on pain OR suffering. The Administration also proceeded on the express assumption that waterboarding does not cause pain. caused the perception of “suffocation and incipient panic.” Bybee states that waterboarding “inflicts no pain or actual harm whatsoever.” Rather, “the waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.”
On waterboarding, Bybee writes:
“Finally, you would like to use a technique called the ‘waterboard.’ In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of “suffocation and incipient panic,” i.e., the perception of drowning…
“We find that the use of the waterboard constitutes a threat of imminent death. As you have explained the waterboard procedure to us, it creates in the subject the uncontrollable physiological sensation that the subject is drowning …
“Although the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result to violate the statuatory prohibition on infliction of severe mental pain or suffering … you have advised us that the relied is almost immediate when the cloth is removed from the nose and mouth. In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture.”
The memos also address a host of techniques from slamming people into walls to put people into small boxes and then dropping insects into the box.
Recently, it was revealed that the torture yielded junk — despite claims to the contrary by Bush officials.
None of these memos contains obvious national security secrets despite virtually few redactions (which appear to refer to individuals and other obvious redactable subjects). It is simply astonishing that CIA director Panetta and NSC staffer John Brennan claimed that national security would be harmed and held up this release. It is clear that intelligence officials viewed these memos as personally incriminating — which is why the Obama Administration simultaneously promised not to prosecute CIA officials engaged in war crimes. The use of national security claims to shield criminal acts or personal incrimination is a well-defined abuse of classification authority.
Judge Bybee’s role is particularly disturbing. Despite the objections from many of us at the time, Senate Democrats refused to block the nomination and now he will render legal judgments for potentially years to come. Absent impeachment or a sudden crisis of conscience, Judge Bybee will remain on the court imposing judgments on others despite his central role in a torture program and war crimes. Below is the vote on Bybee, you will notice only 19 votes against him and many Democrats voted in favor or not voting at all.
General Michale Hayden has written an opinion piece with the audacity of claiming that the release of these memos puts the nation at risk. This is the same General Hayden who launched a clearly criminal warrantless surveillance program while insisting that he checked with his own “legal experts” at the NSA. Not only did he not reveal that various Justice officials told him that the program was unlawful, but both judges and legal experts have rejected this ridiculous claim of legality. The fact that Gen. Hayden is writing op-ed pieces instead of defending himself in a criminal case is due entirely to Democrats who have blocked any criminal investigation.
The decision of Holder to promise that he will not prosecute CIA personnel for war crimes is a remarkable and unprecedented act. While Mukasey cited the same rationale, Holder has confirmed that waterboarding is torture and thus he is promising not to investigate a war crime after confirming the critical element of that offense. The promise also serves to undermine any investigation of higher officials. Civil libertarians are primarily interested in the investigation of those who ordered the war crimes. There is a legitimate defense for these employees that they were assured that this was not torture. However, that defense only applies if they had a good faith belief — a matter for investigation. There is no basis to promise a blanket immunity for all such employees. Moreover, it eliminates a critical bargaining chip in any investigation of higher officials.
For a copy of the newly released memos, click here.
[Rollcall Vote No. 54 Ex.]
YEAS – 74
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Bingaman
Bond
Breaux
Brownback
Bunning
Burns
Cantwell
Carper
Chafee
Chambliss
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Ensign
Enzi
Fitzgerald
Frist
Graham (FL)
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hollings
Inhofe
Jeffords
Johnson
Kohl
Landrieu
Leahy
Lieberman
Lincoln
Lott
Lugar
McCain
Miller
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Pryor
Reid
Roberts
Rockefeller
Santorum
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS – 19
Boxer
Byrd
Clinton
Corzine
Dayton
Durbin
Feingold
Feinstein
Harkin
Inouye
Kennedy
Lautenberg
Levin
Mikulski
Murray
Reed
Sarbanes
Stabenow
Wyden
NOT VOTING – 7
Biden
Campbell
Edwards
Hutchison
Kerry
Kyl
McConnell
The nomination was confirmed.
Take a look at this Bushit
http://news.yahoo.com/s/ap/20090422/ap_on_go_co/us_interrogation_memos_senate
Bybee can’t be impeached soon enough for my liking. Anyone who would write those memos and call it a legal memo needs to be in a different line of work.
Will litigants who were judged by Bybee be able to appeal his rulings due to these memos? Have any done so, yet?
Impeaching Bybee is a start.
http://www.nytimes.com/2009/04/19/opinion/19sun1.html?_r=2
Excerpt:
Interview with Amy Goodman and Scott Horton on Middle East Online:
http://www.middle-east-online.com/english/?id=31578
AMY GOODMAN: We just got this report from Spain, Scott Horton. Spanish prosecutors have “formally recommended against an investigation into allegations that six senior Bush administration officials gave legal cover for the torture of terror suspects at Guantanamo Bay. While their ruling is not binding, the announcement all but dooms prospects for the case against the men going forward.” That, a report from the Associated Press. Scott Horton, can you explain what you understand at this point?
SCOTT HORTON: Well, the Associated Press is giving you extremely faulty legal analysis, because a decision as to whether the case will go forward rests entirely with the investigating judge. The Spanish system is not like the American system, where prosecutors decide who and when to bring cases and who to prosecute. In the Spanish system, the prosecution is managed by an investigating judge. In this case, it’s Baltasar Garzon. And you may recall, he handled the case involving Augusto Pinochet, and he did that against the stern opposition of Spanish prosecutors, I think which shows you the weight that that recommendation may hold with him in his court.
But there’s a different consideration to weigh in here, as well, and that is that this is a statement that was announced by the prosecutors at the Audencia Nacional in Madrid, and we know, in fact, that those prosecutors who have made this recommendation not to go forward in fact concluded that the case should be prosecuted. They prepared a thirty-seven-page memorandum—and I’ve discussed, I’ve talked with several people in Madrid who have read it—that laid out the case, showed how it could fairly easily be brought, how it involved a joint criminal enterprise, how it could be sustained on the basis of documents, including some of those that were released yesterday. And that decision by the career prosecutors was overridden in a political act by Spain’s attorney general, who’s a political figure. He was a member of the cabinet of Prime Minister Jose Zapatero.
Moreover, the attorney general’s decision, which was announced yesterday morning in Madrid, came after several days of high-level discussions between Washington and the Zapatero government, during the course of which, I’ve been told, the Obama administration suggested very strongly that the pendency of this case was inconvenient and that it would be viewed as a great favor by Washington if Zapatero’s government could do what was within its power to shut this down. And I think what we see here is an accommodating nod from Jose Zapatero.
So it has really nothing to do with justice, and it has nothing to do with the merits of the case. It’s a political act. And it’s certain to be understood by the judges of the Audencia Nacional as a political act, which means I don’t think it really forms much of a barrier to the prosecution going forward.
You guys are stuck in your troll fantasy land. I stumbled upon this blog by watching JT on Olberman. Although no fan of Olberman, while swithcing thru the channels I stopped and listened. I was shocked to here what he had to say. Like a good troll, I’ll go troll somewhere else, sorry, I didn’t see the no trolling sign. Just remember I got my eye on you and thanks for all of your wonderful insights.
Mike,
I think you are right. bdaman is merely a troll in neocon disguise. He tries to claime that the DHS report was ordered by Obama and not during the Bush years. It would be nice if these trolls would at least look at the facts. However, facts don’t mean much to Republicans and trolls. bdaman, I was on sites like this and my own site arguing for the impeachment One more thing. What is this crap about the teleprompter? Do they think that Republicans don’t use them? Does he think that McCain or Bush could do without there teleprompters? We have an entire Republican administration that is guilty of war crimes and the trolls bring up teleprompters? I guess it is the wizard behind the curtain defense. Go Bulls!
“If I was a parent I wouldn’t want the spouse of my child making those choices just because of marriage.”
How nice that someone who isn’t a parent of a married child, or any child for that matter, feels competent to discourse on matters he can’t possibly understand. Why that sort of sounds like….someone who would think highly of George Bush. What a typical remark from someone who knows they’ve got no valid argument in the Schiavo case, but is willing to defend it anyway. The other ripostes in the reply to Rafflaw were on the same less than mediocre level. We’ve got ourselves a troll here looking to “stir up them libruls.” He thinks that making stupid comments is going to get the “libruls” blood pressure rising and believes he is having fun.
He probably is since he’s got nothing else going for him in his life except a propensity to follow the authoritarian leader and doing a good goose step. In case this less than inquiring mind actually does inquire, yes I am calling names and going ad hominem on him. Polite stupidity by him in defense of the indefensible is no virtue and deserves no reward of civility.
“let me ask you this, if President Barack Obama fails to pursue an independent investigation on Bush, Cheney or anyone else connected to the illegal torture program, will you be sorry you voted for him?”
Not in the slightest. There was no one running in the Republican party that had any ethical standards or regard for the people, except the wealthiest. That party also has no one with any intelligence in a leadership position. The other choice Ralph Nader has become a doddering egotist and couldn’t have performed, if elected. I am quite happy with President Obama’s performance and I find the teleprompter criticism hilarious, given the morons fronting the GOP. The President has done very well thus far and I believe these prosecutions will come and will convict. However, even if they don’t we at least have a President who gives more than lip service to the needs of the people.
Rafflaw I’m right here with you watching the same policy of the last eight years.
Where were you when George W. Bush lied us into a war in Iraq? Watching it on TV just like you.
Where were you when Bush ordered the illegal wiretapping of Americans? Still right here, watching DHS release a Right Wing Extermist report that was gathered by intercepting e-mails, monitoring comments and chat rooms ect.ect. At least we know the CIA and DHS are working together.
Where were you and your neocon wannabees when George W. Bush actually left his vacation to sign a bill to overturn a husband’s right, pursuant to a valid POA to decide the fate of his brain dead wife in Florida? Same place you are with my right to life. If I was a parent I wouldn’t want the spouse of my child making those choices just because of marriage.
By exclusive use of the prompter he in fact is reading a statement so this is what you ask me to do was to read his statements. Are theses statements his or is he just reading them to me?
bdaman,
You are showing your true colors when you discuss that important issue of using a “teleprompter”. Where were you when George W. Bush lied us into a war in Iraq? Where were you when Bush ordered the illegal wiretapping of Americans? Where were you and your neocon wannabees when George W. Bush actually left his vacation to sign a bill to overturn a husband’s right, pursuant to a valid POA to decide the fate of his brain dead wife in Florida? If you had been listening, you would know that I have stated that it was a mistake to not go after the torture authorizers from day one. However, you may be sorry to hear that the torture issue is very important to me, but it is not the only issue that earned my vote for Obama. And you talk about teleprompters.
Buddha and Mike,
There was good reason for the Allies to be concerned about the Dresden issue as it was a horrific attack on the citizens of the city without concern about military targets.