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.
Buddha,
I vaguely remember the LeMay fears. Considering the man it says a lot, because he was a nuclear hawk. I understand the need we had for the Nuremberg Trials and they were definitely needed. However, each war breeds brutality on each side, which is why it is called Hell. Victory in war too often breeds smugness and denial. There may indeed be just wars, WWII, but no war can ever truly bring justice.
FFLEO,
I knew we’d both been on that road, albeit in different venues. Bureaucracies are bureaucracies though and all are all too similar. Part of the experience, as you’re well aware, is the point where a particular Boss puts you in a choice situation to test your loyalty to him/her and not the mission. I’ve always chosen the mission and often to my self and my family’s detriment. You’ve no doubt been there. My guess is that we survived and prospered, though not as much as we could have, because we worked harder than those around us. With it in the past now I can feel pride in myself for doing the right thing and I bet you feel the same. In the end it’s not about God’s Grace, the toys you own, or the fame you’ve achieved. It is all about doing the right thing, at the right time and the personal satisfaction of remaining true to yourself.
Rafflaw, Read Obama’s statement, ah yes, so good to read them and to have him read from the Tele P only then to see him do the opposite of what he said he would do. Politics at it’s finest.
Just sayin
Let me ask you this, if President Barack Obama fails to pursue an independent investigation on Bush, Cheney or anyone else connected to the illegal torture program, will you be sorry you voted for him? I understand the choice of mail order brides were not very good this go round but does the torture thing just really get up under your finger nail like a sharp bamboo shoot.
I remember Buddah being a fat n happy kinda a guy, didn’t realize he was so angry. Maybe he got that way when the Taliban destroyed him.
Mike Spindell stated:
“FFLEO and I, as government workers would never have done these things despite whose orders. I can’t talk for him, but I’d be a lot more comfortable in my old age had I been willing to do things against my conscience. The truth is we were probably both unusual and I don’t say that as a put down of fellow workers. Most people, wherever they work, have families, mortgages, etc. and find themselves in the position of following orders, or doing the right thing.”
_________________________
Yes Mike, and only the best civil servants who have been down that long, hard road can fully appreciate what you stated…
Mike,
Did you know Curtis LeMay was concerned that had the Allies lost WWII they would be held accountable for war crimes related to Dresden?
“Interesting take on that is linked below:”
Jill,
That is how I introduced the link. “Interesting Take” does not an endorsement make. As a matter of fact the articles author makes sure to make clear that he is only theorizing. Your refutations of the various points may, or not be correct in themselves, since there is no citations where they came from, or whether or not they represent someone else’s opinion.
The point I was making in the body of the comment was that I would prefer to see the perpetrators of the orders prosecuted, rather than those that carried them out. I hold no brief for those who went to jail over Abu Gharaib, what they did was heinous. However, escaping justice were their direct superiors and the Bush administration people who ordered it. My desire is that this doesn’t get entangled for years in trying the small fry, while the really evil people get away with literally murder and torture.
I think that this is where Obama is going and I’ve laid out why in many comments on this thread and elsewhere. As to the argument that could be made as to why these low level people are keeping their jobs, I wouldn’t bet on it. Their career potential has already been stunted and in government service retribution can take many forms. FFLEO and I, as government workers would never have done these things despite whose orders. I can’t talk for him, but I’d be a lot more comfortable in my old age had I been willing to do things against my conscience. The truth is we were probably both unusual and I don’t say that as a put down of fellow workers. Most people, wherever they work, have families, mortgages, etc. and find themselves in the position of following orders, or doing the right thing. With this past administration of scary fascists I would imagine it would take a strong person to hold out against threats and the potential of being blackballed. Many were strong enough, but just as many weren’t.
Now you might cite Nuremberg for me and the dictum not to follow illegal orders, which had many lower level people punished. As a Jew, who believe me takes the Shoah quite seriously and will never visit Germany, I’ve always been uncomfortable with the holier than thou attitude in those trials. While I’m a non-violent person I know that I could have personally murdered many Nazi’s with no compunction. However, given the absolutely murderous nature of the Nazi regime (we must admit that Bush/Cheney were pikers in comparison)I’ve always felt a sense that faced with one’s own, or one’s family’s death for not following orders, people of lesser courage would comply.
In that sense I think Nuremberg’s dicta was a little overblown. Considering acts like the Firebombing of Dresden, the allies also lacked some ethical constraints. I had an English Teacher, ex Marine, who gleefully detailed napalming Japanese soldiers trapped in caves. Let he who is without sin…..etc. While we know that the whole “War on Terror” meme was nonsense, many people actually fell for the rhetoric and saw us at war with an implacable foe. Being “At War” releases some people’s restraints (some might say inner demons) and they willingly go overboard. The criminals who caused this: Bush,Cheney, Rumsfeld, the Neo Con aides and the DOJ foils are the ones I want to see brought down. The tools who believed their rhetoric are just that “tools” and while I’ve no desire to see them prosper, they are rather pathetic as human beings.
The essence of America’s need regarding torture is that those high up in the Bush/Cheney Cabal be punished for their crimes and have that punishment serve as a reminder to future administrations that they won’t be able to get away with it. Three months into the current Administration I see nothing to convince me this won’t happen. If you feel you must refute me please let’s not get into a battle of citations, because as you know I can match you citation for citation and then it becomes whose citation do you believe?
While President Obama has promised transparency in his administration, no administration can be totally transparent when it comes to strategic maneuvering. You see these statements as proving that he’s going to let the bad guys get away with their crimes, I see it as maneuvers to allow the prosecutions to come, without being seen as directly responsible for them. history will be the only judge of who sees it more clearly.
The “clearly criminal warrantless surveillance program” goes way beyond anything that most can imagine, in my opinion, based on events that I have witnessed. I hope and pray that Thomas Tamm is joined by others to expose the full extent of “the program” that is still in force, it would appear.
As Tamm said, when accepting the Ridenhour Prize, “We are safer and more secure when we support the rule of law,” he said. “We need to hold our domestic enemies accountable. We still don’t know the truth about what was done in our name — how many wiretapped, how many tortured. We can handle the truth. Bring it on.”
Please. “Bring it on.” The “clearly criminal warrantless surveillance program is still in full-swing, it would seem.
Bdaman,
Do you actually believe the nonsense that you write? Your alleged reasoning is so ridiculous that you somehow reach the incredible result that Cheney and Bush are the ones who want justice carried out. Read Obama’s statements. The CIA operatives who carried out the torture orders will not be prosecuted if they relied on the legal memos of the OLC. This does not prevent justice from being carried out against the higher-ups in the CIA and in Bush regime.
mespo,
Thanks for the link. I’ll be checking that site again.
Robert Perry’s piece should be required reading for anyone thinking Geo. Bush was anything but a contemptible charlatan masquerading as a President, while all the time believing himself above any law.
http://www.consortiumnews.com/2009/041709.html
bdman,
After the quality of your repeated posts, what makes you think I care what you think?
Buddha, I said it was not written in law and then you want to direct me to Article II Section I(Alot of debate here) of a document that use to mean everything and in the eyes of some mean nothing now. Read Article II Section I over and over then ask JT to explain how there are two classes on how it’s understood.
Regardless of my ignorance, my lack of scruples or any other defaming thoughts you or anyone else may have of me, the CIA officers or anyone following orders or directives from the oval office of the Bush presidency will not be prosecuted under THIS administration. This leaves Bush and Cheney as the two whom most want to see justice carried out.
Lets daydream a bit shall we. Lets say the two were prosecuted and found guilty in the court of U.S. law. Do you honestly believe that any sitting president would allow a previous one to go to prison. They belong to the same club and are members for life.
GW Sr. allowed TONS and TONS of coke to be imported to the U.S. Where did it arrive first before distribution? Arkansas and Louisiana, all to fund a policy of the U.S.
Where in the constitution does it say the president can do that?
What happened?
Oliver North was the fall guy but he’s fine now, normal life and is just a regular Ol Joe. Who went to jail for possession with intent to sell? Certainly not GW Sr.
Bill Clinton covered for GW Sr., GW Jr. covered for Clinton and now Obummer is covering for GW Jr.
On a final note if your wondering where Cheney fits in, Cheney was covering for O when, by law, from the same document you directed me to, failed to call for any objections in confirming the electoral college votes.
Lets just say this presidency was no doubt, a shot gun wedding!!!
The constitution gave( past tense) power to WE THE PEOPLE, when you can show me that the elected 500 plus in D.C. represent WE THE PEOPLE, I’ll start rolling over in my grave.
P.S. Notice how I commented without name calling
George Bush was not impeached because the Congress was and is corrupt and complicit in War Crimes.
Excerpt from:
“Will They Be Prosecuted?”
by Scott Horton
http://www.thedailybeast.com/blogs-and-stories/2009-04-17/will-they-be-prosecuted/
“Within a period of only a few hours, however, Judge Garzón issued an opinion on the matter. He rejected the application for a transfer to Judge Moreno saying he disagreed with the prosecutors’ analysis and felt the case should remain in his hands. However, recognizing the prosecutors’ objection, Garzón referred the case to the chief judge of the Audiencia Nacional’s penal chamber to make the final call as to whom the case should be referred. The case of the Bush Six is therefore now back in the court’s assignment system.
Lawyers familiar with Audiencia Nacional practices advise me that the chief judge usually decides questions about the referral of cases extremely quickly, in a matter of only a few days. If that holds in this case, then next week we should learn the identity of the judge who will decide whether the Bush Six case will move into the next phase of criminal investigation, or will be dropped.”
Buddha,
Well said. George W. should have been impeached while he was in office, but I would be satisfied with with a conviction for ordering a war crime.
bdman,
Your ignorance is once again astounding.
This, and ONLY this, defines the President’s job
U.S. Constitution
Article II
Section 1
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section 3
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
______
Pay particular attention to that last part, W. Apologist.
bdaman,
Once again you are incorrect. The President does not have any duty to protect the oval office. He/she has a duty to protect the country and a duty to preserve and protect the Constitution.
Not all cracked up like you thought it was going to be, is it?
I’ll repeat my comment on a similar post. It is not written in law and is not opinion and therefore not theory.
It is the duty of the President to protect the oval office and all of it’s past officers. Pardon me for my lack of history knowledge.
“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?…”
—
That there is ‘clearly documented evidence’ is queationable from a legal standpoint. That is the problem in a nutshell, I believe.
I think I know what happened OR what would have likelyoccurred under several possible scenarios. The question is, could I PROVE any of them it in a Court of Law?
Unfortunately, I’m not sure…
Pissed off doesn’t even begin to cover how I am feeling right now.