The Bush Administration has released torture memos that reveal the extent to which officials laid the groundwork for a criminal defense in its torture program. The 2002 memos instructed interrogators in a good-faith defense for any claim that they were committing federal crimes.
Administration lawyers told interrogators that they could not be charged with criminal acts so long as they could claim that they lacked “the specific intent to inflict severe pain or suffering.” The redacted memos reveal an obvious effort to claim a good-faith defense by encouraging interrogators to claim no intent to cause pain.
The memo by Jay Bybee seems designed to supply interrogators in advance with a criminal defense by instructing them on the requirement of specific intent. It also indicates how Administration officials expected to face potential criminal charges. They probably did not anticipate the extent to which Democratic leaders would intervene to protect them and the President from any serious investigation.
“Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture,” he instructed.
Because the Democrats refused to block him, Bybee is now a judge on the United States Court of Appeals for the Ninth Circuit.
What is also fascinating is the memo from George Tenet saying that he is preserving careful records of all of these memos and names. Tenet is obviously concerned that, despite claims of legality from people like Yoo, criminal charges could be brought. It is also notable that, soon after he left office, we saw the knowing destruction of tapes and records by the CIA despite court orders to preserve evidence.
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26 thoughts on “The Bybee Memo: How to Torture and Avoid a Criminal Charge on Technicality”
Who needs any technicality? Eisenhower murdered over 1 000 000 German POWs that he reclassified DEFs (disarmed enemy forces) and it was hardly mentioned and they were hundreds of thousands of Caucasian, European, Germans, who cares about a few hundred Semitic, Middle Eastern Arabs?
Bush Jr. could come out and say, “Hell yes we torture, and I’ve personally electrified scrotums and sodomised enemy combatants”, and Congress would still fund the “war” and Obama would say that it’s not that egregious. Regardless, President McCain (the man who makes jokes about killing Iranians and the rape of American women) would pardon all of them anyway (see President Ford).
“What is striking is how no one has challenged the Administration on the fact that the memos have now been released publicly in redacted form without any serious claim of compromised national security.”
This is absolutely true. What worries me is that they are openly releasing and admitting to all kinds of crimes. I have a very bad feeling about this.
I am talking about Mukasey, as replacement for Gonzales, then Cheney, and then Bush – in that order!
I think I asked this question earlier, but can we use these memos to impeach Bybee? Wouldn’t the authorization to torture which is still illegal be a high crime?
jonathanturley 1, July 25, 2008 at 9:12 pm
The problem is due to the refusal of democratic Senators to require disclosure of the memos as a precondition for confirmation. What is striking is how no one has challenged the Administration on the fact that the memos have now been released publicly in redacted form without any serious claim of compromised national security. It is obvious that the memos could have been released at the time and that the memos have great significance to the nomination of Baybe for judicial post.
Got it – intent!
You hit the nail on the head concerning the Democratic Senators. Much like Sen. Schumer who voted for Michael “Gonzo II” Mukasey, the Senate has caved instead of drawing a line in the sand. Now we have to pressure the Obama administration to release the memos in non-redacted form in January, 2009. I have my fingers crossed that the torture will come to an abrupt end.
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