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.
Please explain how Holder gets to choose who he prosecutes when
there is clearly, documented evidence that Bush and his cabinet,
in addition to the Justice Dept. approved torture.
Is there any sort of law suit an individual can bring to force them to file charges?
FFLEO,
‘Parallel to the shore’ is in reference to sound guidance to circumnavigation of ‘Undertow’ at beaches so as to avoid being potentially swept out to sea, while simultaneously being pulled under by the action of waves.
If you try ONLY to fight against the pull away from shore, you will eventually tire and drown.
The way out is to swim across the pull, ‘parallel to the shore’,
into an area where the Undertow is either not present or very minimal.
As you know, mespo, I think TJ was very ‘New Age’ for his time.
I love it when ‘karma’ comes back around in the Universe and I can say’ – Couldn’t have happened to a nicer Guy/Gal… 😉
Patty C,
Some people prefer the thrill, rush, and excitement of swimming away from the shore into those deep dark, shark-infested waters…one never knows what they might find in Obama’s ‘davy-jones’ locker of political skeletons, doncha know…
I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.
–Thomas Jefferson
PattyC,
To answer your question, I would rather have Obama without a doubt over anyone the Republicans could offer. I think we will see some action on the torture enablers, but it will be a slow process. I really want the higher ups anyway, so the operatives can get a pass as long as the attorneys who called this crap a legal memo are not given a pass. And Bush, Cheney and the entire cabal must be investigated. Not only do we need to see the rule of law return, the world needs to see it also.
Jay Bybee got a lifetime Judge appointment and George Tenat got
the ‘Medal of Freedom’…
What should we suppose is the difference, there.
ya think…???
Parallel to the shore
– SWIM… !!!
” The problem with the ideas of the writer in the article is they are factually incorrect…
—–
“Like we can rely on you for ‘Facts’…
… Yikes!!! {:o
War Crimes investigations will lead to Bush’s and Obama’s doors.
Obama has been a War Criminal for years in funding, conspiring and waging Wars of Aggression.
James McNair Thompson stated:
“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.”\
__________________
Thank you for that succinct statement that expresses my verbose thoughts regarding this issue. I too reside within a judicial District over which the 9th Circuit Court of Appeals has jurisdiction; I am therefore directly affected by its rulings that are, in part, rendered by Circuit Judge Jay S. Bybee.
Judges, lawyers, and other legal professionals are as human as the any other subset of society; however, given their extensive education, legal knowledge, and the oaths of office pledged, they must be held to high standards of conduct and accountable for any criminal misconduct. This was not simply a misjudgment or error of legal fact, with which we all must, or can—on compassionate grounds recognizing that we all err as humans–overlook with an appropriate admonishment and a possible minor fine. This was a violation of at least one section of a major legal statute with international implications.
Rafflaw, what I perceive the Obama administration as having committed ‘We the People’ to, if by ‘omission’, is defending CIA operatives, generally, against prosecution for acts committed in the course of their duties – reliably or not so, in defense of the US as proscribed BY LAW, under oath, to preserve, protect and defend the Constitution TO THE BEST OF (‘HIS/HER) THEIR ABILITIES…
Obama’s job sucks AND he very much wants to succeed at it on all fronts, anyway. He’s very brave.
If you recall, GW didn’t want the job and displayed his contempt for the rule of law every day…
Whereas, Bill Clinton, his successful predecessor, loved it being President and perceived it as the BEST occupation in the World!
What type should we rather have…?
Melvin,
“the people doing the torturing were concerned that they be protected, down the road, from prosecution for their violations of the actual law.
Section 2340A of title 18 of the U.S. Code says this: “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.”
And 2340C adds this for the benefit of the people writing the “legal” permissions to violate it: “A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.”
And what is torture? According to 2340 it is “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
And then there is Section 2441, which prescribes a fine or prison or death to any American who commits or conspires to commit a war crime, including torture or cruel or inhuman treatment. This was the section of law that caused then White House counsel Alberto Gonzales to warn Bush and others that they should deny prisoners in Afghanistan the Geneva Conventions as the best defense of their own necks…”
http://www.counterpunch.org/swanson04172009.html
How about Vincent Bugliosi for special prosecutor?
Mike S.,
The problem with the ideas of the writer in the article is they are factually incorrect. We do have accounts of what happened in the CIA and it isn’t those things.
“Sane case officers at CIA get back the word that OLC says, “All the things you say are illegal are, in fact, legal. And they are the experts in what’s legal and you are not, so up yours, do what you have been ordered to do. Oh, and, by they way, you cannot see the memo, or mention that it even exits. No talking about it among yourselves.”
—————————————————————-
Officers from the highes to the lowest level at the CIA sought advice from independent attorneys and were told what they were being asked to do was illegal. They were told should they proceed they should get everything approved in writing. “Interroators” didn’t make a move without clearance from The Sec. of Defense and above.
“This would leave the sane CIA operative with 2 choices: 1) resign at a moment in history when Our country desperately needed all the intel it could get, thereby depriving our country of the years of training and experience the American people had invested in this agent,…”
———————————————————–
1. at the time it was known by most professional interrogators that torture does not work. So resigning because one didn’t want to torture another person would not have deprived the US of any desperately needed intel.
“The one and only thing that the Shrub administration has consistently excelled at was in framing decisions and limiting access to information in such a way that normal people found themselves in positions where they believed their choice was limited to figuring out which was the lesser of two evils. Remember Addington kept some OLC opinions locked in his own safe, so no one but him could see them.”
—————————————————————-
Immaterial what Addington did. The Geneva conventions are clear. They are taught to CIA case officers. One is supposed to refuse an illegal order.
“Crazy people at the White House got sane people in the agencies to do all kinds of things by isolating them from competent advice, depriving them of necessary and pertinent information, and just plain lying to them. Perhaps that is what happened to the line officers at CIA?”
—————————————————————
Again, not what happened. They had their own attorney’s advice.
“President Obama’s position regarding those line officers, while I disagree with it, may be a reflection that he believes that they were manipulated and lied to by those they had a right to trust.”______________________________________________________________
No, it is public knowledge that “interrogators” had their own legal advice and called the WH or Sec. of Defense before making every move.
The CIA officers were not in the same position as guards at AG. They had a much broader range of options open to them. The circumstances under which they tortured are important in sentencing but not in avoiding prosecution.
Again, I must ask why any democracy would tolerate the employment of a group of people who broke our laws. It is dangerous to leave such a group in place. When we have talked about police who abuse their authority and tase people, we do not say they should keep their job. We know that leaving these people in place makes for a climate of abuse. It isn’t really different with CIA officers. They need to go.
Dr. Turley, I’ve enjoyed your commentary on Constitutional law on MSNBC. However, on your next appearance, it would be helpful to many of us who enjoy the subject to have Olbermann or Maddow to have a listing of the laws that have been broken, such as those associated with the torture issues, particularly the treaties and US legal code.
Just a thought. Thanks
Come on Mike Spindell,
Lets see what you can offer on the McDonalds side.
Here’s the problem. If Obama and Congress refuse to do anything about these clear violations of US law because he doesn’t want to rile up “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,” then what am I supposed to say to the people I am defending in Federal Court against the Justice Department’s efforts to lock them up for long periods of time on claims that they did things less serious, in my opinion, than make the United States officially pursue a policy of committing war crimes: “Sorry, you aren’t important enough to ‘just look forward’, to just reflect upon your deeds but without recrimination?” We have an official two tier justice system: the people “too big to prosecute” and the rest of us. Only Congressional impeachment of Bybee can turn this ship around.
rcampbell,
As far as I can see it is the low level people who actually conducted the torture. As I think about it this makes sense to me because look at what happened at Abu Gharaib. They sent some low level people to jail and the ones who gave the orders went free. Would I have conducted torture if I was a CIA agent, no I wouldn’t. FFLEO wouldn’t have either. Some people though between a rock and a hard place, with family’s to support and a mad administration threatening reprisals, may have felt differently. Especially with “legal experts” telling them its okay. Interesting take on that is linked below:
http://firedoglake.com/2009/04/17/why-obama-took-prosescution-of-cia-officers-off-the-table-a-theory/ happened at Abu
Patty C,
You are correct that the administration has only barred prosecution for CIA operatives who relied on the memos. There is no protection for CIA employees that tortured beyond the memos and even before the memos were issued. It also doesn’t bar prosecution of Bush regime higher-ups, including Bush. Here is a link to a Think Progress posting that discusses that very subject. http://thinkprogress.org/2009/04/17/door-open-for-torture-prosecutions/