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.