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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