The Bybee Memo: How to Torture and Avoid a Criminal Charge on Technicality

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.

For the full story, click here

26 thoughts on “The Bybee Memo: How to Torture and Avoid a Criminal Charge on Technicality”

  1. 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.

  2. Not to worry, we’ve know to start from the beginning with the
    Oath of Office.

    Once upon a time…

  3. Jill,
    You are right, but I wouldn’t be so sure that they are not going for the quantity of crimes, as well. If it benefits their corporate sponsors then they are for it. A prosecution won’t know where to start!

  4. rafflaw,

    I really agree with you. Sometimes I think they’ve committed so many crimes that people go into a kind of psychic overload when we hear about yet, another one. I know I feel that way. It’s one really serious crime after another. None of them even approach petty or insignificant. It’s like, what will we find out today? It’s hard to think things out when overwhelmed by this much cruelty and malfeasance.

    I don’t think they keep piling up crimes for this effect but I’m certain they take advantage of it.


  5. Mespo, PattyC, Jill,
    It does get tired repeating the same old arguments against the torturers who pervade the Bush Administration. But, we must keep discussing this issue so that maybe something will eventually be done about it. Maybe I am drinking the optimist kool-aid today, but I am hopeful that these torturers and enablers will be brought to justice eventually.

  6. mespo, that’s what JT meant when he said it was ‘a dark day’ for the Bar.

    I get tired of saying the same things over and over, too.

    Take the weekend off, if you want!

  7. To All:

    I would join into this discussion but I think I have decried these people about as much as I can. To see the inner workings of this lawyer led and sanctioned conspiracy sickens me the way doctors in late the 1940’s must have reacted to learning about Mengele’s complicity in the atrocities. It’s like learning for the first time that something you love can be perverted beyond recognition by those who see it as a means to an evil end, rather than an instrument for good.

    I am reminded of Robert Oppenheimer who famously said, “[t]he optimist thinks this is the best of all possible worlds. The pessimist fears it is true.”

  8. The ‘low-lying WV fruit’ are in jail. You and I want the cream of
    this crop

  9. Jill and PattyC,
    Thanks for the links. This torture issue should be one of the top issues in the campaign and people should already be in jail because of it.

  10. ’04 WP article from my ‘greatest hits’,and one of my favorite quotes.

    “It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way,” said a senior military attorney. “Once you start telling people it’s okay to break the law, there’s no telling where they might stop.”

    Memo Offered Justification for Use of Torture
    Justice Dept. Gave Advice in 2002

    By Dana Priest and R. Jeffrey Smith
    Washington Post Staff Writers
    Tuesday, June 8, 2004; Page A01

    In August 2002, the Justice Department 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, according to a newly obtained memo.

    If a government employee were to torture a suspect in captivity, “he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network,” said the memo, from the Justice Department’s office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on “necessity and self-defense could provide justifications that would eliminate any criminal liability” later.

    The memo seems to counter the pre-Sept. 11, 2001, assumption that U.S. government personnel would never be permitted to torture captives. It was offered after the CIA began detaining and interrogating suspected al Qaeda leaders in Afghanistan and elsewhere in the wake of the attacks, according to government officials familiar with the document.

    The legal reasoning in the 2002 memo, which covered treatment of al Qaeda detainees in CIA custody, was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Department’s detention center at Guantanamo Bay, Cuba. At that time, Defense Secretary Donald H. Rumsfeld had asked the lawyers to examine the logistical, policy and legal issues associated with interrogation techniques.

    Bush administration officials say flatly that, despite the discussion of legal issues in the two memos, it has abided by international conventions barring torture, and that detainees at Guantanamo and elsewhere have been treated humanely, except in the cases of abuse at Abu Ghraib prison in Iraq for which seven military police soldiers have been charged.

    Still, the 2002 and 2003 memos reflect the Bush administration’s desire to explore the limits on how far it could legally go in aggressively interrogating foreigners suspected of terrorism or of having information that could thwart future attacks.

    In the 2002 memo, written for the CIA and addressed to White House Counsel Alberto R. Gonzales, the Justice Department defined torture in a much narrower way, for example, than does the U.S. Army, which has historically carried out most wartime interrogations.

    In the Justice Department’s view — contained in a 50-page document signed by Assistant Attorney General Jay S. Bybee and obtained by The Washington Post — inflicting moderate or fleeting pain does not necessarily constitute torture. Torture, the memo says, “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

    By contrast, the Army’s Field Manual 34-52, titled “Intelligence Interrogations,” sets more restrictive rules. For example, the Army prohibits pain induced by chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time; and food deprivation. Under mental torture, the Army prohibits mock executions, sleep deprivation and chemically induced psychosis.

    Human rights groups expressed dismay at the Justice Department’s legal reasoning yesterday.

    “It is by leaps and bounds the worst thing I’ve seen since this whole Abu Ghraib scandal broke,” said Tom Malinowski of Human Rights Watch. “It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.”

    But a spokesman for the White House counsel’s office said, “The president directed the military to treat al Qaeda and Taliban humanely and consistent with the Geneva Conventions.”

    Mark Corallo, the Justice Department’s chief spokesman, said “the department does not comment on specific legal advice it has provided confidentially within the executive branch.” But he added: “It is the policy of the United States to comply with all U.S. laws in the treatment of detainees — including the Constitution, federal statutes and treaties.” The CIA declined to comment.

    The Justice Department’s interpretation for the CIA sought to provide guidance on what sorts of aggressive treatments might not fall within the legal definition of torture.

    The 2002 memo, for example, included the interpretation that “it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture.” The memo named seven techniques that courts have considered torture, including severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person.

    “While we cannot say with certainty that acts falling short of these seven would not constitute torture,” the memo advised, “. . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.”

    “For purely mental pain or suffering to amount to torture,” the memo said, “it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” Examples include the development of mental disorders, drug-induced dementia, “post traumatic stress disorder which can last months or even years, or even chronic depression.”

    Of mental torture, however, an interrogator could show he acted in good faith by “taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience” to show he or she did not intend to cause severe mental pain and that the conduct, therefore, “would not amount to the acts prohibited by the statute.”

    In 2003, the Defense Department conducted its own review of the limits that govern torture, in consultation with experts at the Justice Department and other agencies. The aim of the March 6, 2003, review, conducted by a working group that included representatives of the military services, the Joint Chiefs of Staff and the intelligence community, was to provide a legal basis for what the group’s report called “exceptional interrogations.”

    Much of the reasoning in the group’s report and in the Justice Department’s 2002 memo overlap. The documents, which address treatment of al Qaeda and Taliban detainees, were not written to apply to detainees held in Iraq.

    In a draft of the working group’s report, for example, Pentagon lawyers approvingly cited the Justice Department’s 2002 position that domestic and international laws prohibiting torture could be trumped by the president’s wartime authority and any directives he issued.

    At the time, the Justice Department’s legal analysis, however, shocked some of the military lawyers who were involved in crafting the new guidelines, said senior defense officials and military lawyers.

    “Every flag JAG lodged complaints,” said one senior Pentagon official involved in the process, referring to the judge advocate generals who are military lawyers of each service.

    “It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way,” said a senior military attorney. “Once you start telling people it’s okay to break the law, there’s no telling where they might stop.”

    A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in the world. But the Pentagon group’s report, prepared under the supervision of General Counsel William J. Haynes II, said that “in order to respect the President’s inherent constitutional authority to manage a military campaign . . . [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”

    The Pentagon group’s report, divulged yesterday by the Wall Street Journal and obtained by The Post, said further that the 1994 law barring torture “does not apply to the conduct of U.S. personnel” at Guantanamo Bay.

    It also said the anti-torture law did apply to U.S. military interrogations that occurred outside U.S. “maritime and territorial jurisdiction,” such as in Iraq or Afghanistan. But it said both Congress and the Justice Department would have difficulty enforcing the law if U.S. military personnel could be shown to be acting as a result of presidential orders.

    The report then parsed at length the definition of torture under domestic and international law, with an eye toward guiding military personnel about legal defenses.

    The Pentagon report uses language very similar to that in the 2002 Justice Department memo written in response to the CIA’s request: “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” the draft states. “In that case, DOJ [Department of Justice] believes that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

    The draft goes on to assert that a soldier’s claim that he was following “superior orders” would be available for those engaged in “exceptional interrogations except where the conduct goes so far as to be patently unlawful.” It asserts, as does the Justice view expressed for the CIA, that the mere infliction of pain and suffering is not unlawful; the pain or suffering must be severe.

    A Defense Department spokesman said last night that the March 2003 memo represented “a scholarly effort to define the perimeters of the law” but added: “What is legal and what is put into practice is a different story.” Pentagon officials said the group examined at least 35 interrogation techniques, and Rumsfeld later approved using 24 of them in a classified directive on April 16, 2003, that governed all activities at Guantanamo Bay. The Pentagon has refused to make public the 24 interrogation procedures.

    Staff writer Josh White contributed to this report.

  11. This is info from the Center for Constitutional Rights. I have not watched the video, but it may be worthwhile. It’s from…

    “a panel discussion, “Guantanamo, Habeas Corpus, Torture and Military Contractors: The Roadmap to Accountability in the First 100 Days.”
    From illegal detention policies to outsourcing torture and mercenaries, the Bush administration has worked systematically over the last seven years to violate U.S. and international law. Legal advocates and journalists have uncovered the facts and identified those responsible. So what will accountability look like? What must the courts and the next administration do in its first 100 days to make things right?
    We tried to answer these critical questions on our panel. I moderated a lively discussion with a terrific group of speakers: Vince Warren of CCR, Jameel Jaffer of the ACLU, Jeremy Scahill of Democracy Now! and the best-selling book on Blackwater, and Dahlia Lithwick of and NPR.
    Watch a video of the panel by clicking here or visiting our website at”

  12. They just keep throwing their turds everywhere and watch them stick. I say, duck and uncover!

  13. Jill,
    Once again you are right. They know that none of these “arguments” pass muster so they try to use the volume methond of defense. Two or three insane arguments are better than one.

  14. “But this very narrow definition of torture was only one part of the memo, which largely was written by Assistant Attorney General John Yoo. It also asserted that the U.S. ratification of the 1994 torture statute could be considered unconstitutional because it would interfere with the president’s power as commander in chief.”

    Above quote is from PBS Frontline discussion.

    My question: why is Yoo arguing this if they aren’t aware they are committing crimes?

  15. Jill,
    You are right. There is no real argument. There is just a facade put up by the Bushies to use in case they got caught. And now that they are caught, they try to trot out these excuses for legal reasoning and redact them to make them look serious to the American public. But as Prof. Turley states above, “The 2002 memos instructed interrogators in a good-faith defense for any claim that they were committing federal crimes.” These guys are felons and war criminals. Plain and simple.

  16. 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.”

    I don’t see how these argument stand up. The intent was to use severe pain and suffering to obtain “information” or really, confessions.

    The administration and its lackeys were trying to provide cover from criminal prosecution, while simultaneously claiming nothing criminal was really happening. Why try to prevent proscecution for non-crimes in the first place?

    cheney said in public they were going to work the dark side and do “things” etc. to, I believe, Tim Russert. They started out with a plan to torture, they ordered it, chose the methods, approved them, sometimes case by case. That in no way squares with lack of intent to cause harm. The intent of torture is to cause harm.

    Bybee should be impeached, along with cheney and bush, immediately.

  17. I couldn’t agree more Bartlebee. The torture campaign by the Bush regime is a cover for the fact that they were asleep on 9/11 and they had to show the public that they were doing everything that they could to prevent another attack. They had to look tough and act tough. And they had to make it look “Legal” to protect their backsides. That is where Yoo and Bybee come in with these “legal” memos that were something that would have been thrown back at me by my professor if I had turned them in my Legal Research and Writing class back in law school.
    The Dems have to somehow find some intestinal strength and demand the full disclosure of these redacted memos, including names, and if they don’t get them, heads should roll. Now, will I get my wish? The Democratic Congress has to go to the mat and if it turns into a Constitutional crisis, then so be it. With the election 3-4 months away, I am not holding my breath. At the very least, an Obama administration must get the truth into the American public’s hands. There is nothing in these memos that should be secret. If Bush and Cheney can release the name of a covert CIA agent to the Robert Novak’s of the world, then unmasking these memos should be a snap. It is early in the morning, however, so maybe I am still asleep and I am just dreaming.

  18. rafflaw
    1, July 25, 2008 at 12:39 am

    If authorizing torture of human beings is not a High Crime, I don’t know what is

    And since they’ve admitted to waterboarding, and even Christopher Hitchens (one of the far rights few literate apologists) concedes that waterboarding is torture, then the straw argument of whether or not they are torturing is just that. A straw argument.

    Theres only two sides here to take on this.

    Either torture is acceptable (whether it works or not) to try and “Keep Americans Safe”, or it is not.

    Personally, I think the American life that is comfortable being “kept safe” with torture, doesn’t merit being kept safe.

    “..if waterboarding does not constitute torture, then there is no such thing as torture.”

    Christopher Hitchen’s
    From the August, 2008 Vanity Fair article;
    “Believe Me, It’s Torture”

  19. It would make an interesting story to charge a sitting Appellate court judge with war crimes. How did these guys get this far with such lame legal reasoning? Prof. Turley is right that the Dems have enabled this poor excuse for an attorney to get to the position he holds now. Even in their redacted form, these memos show an arrogance in the rule of law. This reasoning alone should be reason to impeach Bybee. If authorizing torture of human beings is not a High Crime, I don’t know what is.

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