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.
Mr Turley,
I read the summary of your interview with Rachel Maddow on the 16th.
You suggested a special prosecutor be appointed for Obama to take “the right way to go.”
You said if Obama “wants to guarantee that it’s not retribution, and not the blame game, all he has to do is pick an independent person, someone who is manifestly not partisan, and have them make a decision based on the law,” Turley suggested. “Give it to a career prosecutor and ask him to take the investigation wherever illegality may be found.”
Sir, can you give us a name, or two, who you think could perform this job as it needs to be done AND whose appointment would cause minimum howling from the right?
Thanks
Like a lot of people, I’m disappointed that Obama and Holder aren’t pursuing the torture gang more aggressively. But it’s worth remembering that Obama is operating in Washington, where literally hundreds (if not thousands) of people are connected to the torture crimes in some way. They might be CIA operatives, or former members of the Bush administration, or members of Congress who failed in their oversight responsibility, or journalists who failed in their role as government watchdogs. There is a huge constituency for the notion of just sweeping the whole mess under the rug and moving on. Given that political environment, I think Obama has done very well just to get the torture memos released– that was a courageous act, and it’s now the job of We the People to apply the pressure and make sure that there is follow-through on the issue.
Those of us who hang out in the blogosphere see the moral parameters of the torture issue very clearly, and we’d like to see some heads roll. But Obama is dealing with a Congress and a press still populated by the sort of nitwits who thought that Bill Clinton ought to be impeached for his romantic adventures and a cheezy housing development on a dirt road in Arkansas. Given what he has to work with, I give Obama credit for what he is doing thus far.
RC-Pay attention – THAT is exactly what I have been suggesting, repeatedly – although not in the form of a question mark.
Am I wrong or has the administration only barred prosecution of the CIA employees who conducted the torture? I don’t recall anything prohibiting going after the likes of Yoo and others who created the legal foundations authorizing the activity.
I’d like to see JT at least touch on McCain’s Amendment to the DTA
(Detaintee Treatment Act) back in 2005 and the overwhelming Senate approval of same – when they didn’t KNOW what was actually in the ‘revised’ manual, with regard to ‘revised interrogation techniques’, because the manual’s release was (purposely?)delayed
– until AFTER it passed, as I vaguely recall…
What Bybee facilitated for the Bush administration was morally and legally wrong, and hopefully one day he may be prosecuted for it. The fact that he now sits on a federal bench, passing judgment with his faulty, dishonest reasoning, on cases that impact our citizens every day is truly worrisome. He needs to be impeached immediately.
blogenfreude, James McNair Thompson, et. al.
As Holmes (Sherlock, not Oliver Wendall)used to say “the game is afoot.” We all need to do our parts and both of you are being constructive. Some may scoff but as an old fart, whose always been fascinated by political maneuvering, I believe the country is being given a message to force this to the forefront beyond the choking grasp of the MSM and the Beltway Village. Our part is to keep applying the pressure visibly and vocally on those too scared to act without political cover. Letters, phone calls, petitions and dogged people like Jonathan, Keith and Rachel on the airways can make this happen and we shall see prosecutions to punish those who have done such harm to our country.
Barack Obama is proving to the world he is a two bit Chicago style politician.
Shame on those of us he fooled.
Do you want to see whether W must give a sworn statement about lies, lies, lies and yes this exists about his Presidential Library. Well what more could one expect from the President with the most truncated truth ever.
See it for yourself step right up, come one come all ladies and children of all ages. The show has just begun, the Judge hinted to the attorneys by stating the following:
“State District Judge Martin Hoffman, who is presiding in the case, had urged lawyers for all sides to reach an accord on how a statement from Bush could be taken.”
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/04170n9dnmetbushtestimony.e3c220c2.html
Seems like you’re getting more airtime lately…I think they’re trying you out for that ever elusive 10pm time slot. It would be nice to have someone who understands law being on TV talking about it.
Oh and I’m extremely happy that the White House/DOJ released these memos with only minor redactions. Now for the perp walk
So: We were once in danger. Now we live in “a bright, sunny, safe day in April 2009.” Now, in April 2009, Obama’s Director of National Intelligence seems to be saying, we’re safe.
Good news, if true. And it would be an amazing tribute to the preceding administration’s efforts in the war on terror–efforts that Democrats have been saying for years were making us less safe. Apparently, the old policies worked. The threat from al Qaeda has gone. We now have the luxury of “reflection,” as President Obama put it in his statement, the luxury of debating and deploring what we did back in the bad old days when there was a war on. After all, “we have been through a dark and painful chapter in our history.”
Leave aside how dark and painful the chapter really was. The question is, Is it over? Is the chapter in which we had to focus on preventing further attacks really through? Isn’t there still a war against the jihadists on?
Since the administration shows no promise of prosecuting clearly criminal conduct, and since the courts have no power to initiate a prosecution for torture, Congress is the only branch of government left to which we may turn for decisive action. That power to act lies in its ability to impeach Bybee, who is presently sitting on the US Court of Appeals for the 9th Circuit. That he should escape all punishment for his high crimes, while my clients do not benefit from a benign “let’s look forward, not backward” Justice Department policy, makes an utter mockery of the criminal justice system.
We should each demand of our Representative in Congress that impeachment proceedings against Circuit Judge Jay S. Bybee for violation of 18 U.S.C. 2340A(a), the commission or attempted commission of torture and 19 U.S.C. 2340A(c), conspiracy to commit torture, be commenced immediately.
James McNair Thompson
Certified Specialist in Criminal Law
Los Gatos California
Sent to the Schume:
You supported Jay Bybee for a seat on the Ninth Circuit. Now that the torture memos are out, it’s clear the only bench he should be sitting on is one in a jail cell. At minimum he should be impeached. Disingenuous legal reasoning used to permit activities universally acknowledged as torture – another hallmark of the Bush administration.
So what are you doing to do about it? Will you call for impeachment? Maybe disciplinary action by his bar? Let me know.
The op ed piece appeared in the Wall Street Journal. Hayden and Mukasey have expertly drafted paragraph after paragraph of self-serving garbage. Fortunately, Mukasey will never again be a judge. Would that we could say the same for Bybee.
Thank you Jonathan for your coverage of this issue. I am a British citizen and longtime US resident who has been seriously considering naturalizing as a result of the events of the past year. This apparent move by the administration to block prosecution of acts which are clearly illegal, ostensibly for political purposes is leading me to reconsider.
The language of the Bybee memo that you cite exhibits a casuistry which enabled the Inquisition to inflict its violence upon so many thousands of people for centuries.
I have little understanding of the workings of the law at this point: what options for prosecution, if any, are now available? Does the State HAVE to be the prosecutor for this case, or can other organizations file suit? Can foreign governments do so, as with the Spanish government’s prosecution of Augusto Pinochet?
The op ed by Hayden, linked above, shares his byline with
Michael Mukasey, of all people!
Curiously, they appear to be laying responsibility at the feet of George Tenet, who was CIA Director under George W Bush AND Clinton from Jukly 1997- June 2004 – without actually naming him…
Dear Attorney General Holder,
Please appoint a Special Prosecutor to investigate and prosecute Bush administration officials and agents for violations of the US Code that prohibit torture (18 USC 2340) and war crimes (18 USC 2441) as revealed by the Bush OLC Yoo/Bybee-Bradbury memos.
The primitive, bestial crimes described in these memos alienate America’s allies, repulse the uncommitted, validate our adversaries, corrode practical international laws to protect our captured soldiers and citizens and produce negligible actionable intelligence at the expense of immense needless suffering.
Appoint a Special Prosecutor to investigate and prosecute these crimes or prepare for a more ferocious and damaging repetition by future official criminals emboldened by the example of those who successfully flouted our laws. Thank you.
Very truly yours,
When former senator George McGovern asked that famous question at the time”what about watergate”he was dismissed as a sore loser but it took two years to unravel that traversty,hopefully there is a George McGovern out there who will do the same for this situation.And ask the question.
blogenfreude,
Calling and writing him is a good start. As a former NY’er, who has watched Shumer’s career since its’ beginning I must say that he has become more and more disappointing. given that though it also means he will respond to pressure. Lay it on him but also get involved with the ACLU and the Working Family’s Party. Write and call Congress, call the White House and generally raise hell. That people like Bybee exist is no surprise to us, after all how many Democrats allowed a clown like Roberts to get through? The battle historically has always been between those of the elite who care only for their perks and the rest of us just trying to stay afloat in the world. While there are always setbacks I think we beginning to go ahead on points, but it has and will continue to be a long, long war.
On a lighter front: Go Jets!
My senator Chuck Schumer supported this monster during confirmation. I can call or write his office, but what else is there to do? A bar complaint? This person simply cannot continue to sit on the federal bench. A bench in a jail cell, on the other hand, would be appropriate.