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Some conservatives are critical of President Obama’s April release of four memorandums authorizing the use of harsh interrogation techniques by the CIA and the military.
Critics should keep in mind, however, that prior to the president’s action, a federal judge was on the verge of ordering the memos’ release, pursuant to a Freedom of Information request from the American Civil Liberties Union.
The defense of the contents of the memorandums is incomprehensible. What their authors stated ran counter to federal and international laws on torture. They did not merely engage in an act of “meretricious lawyering” practiced by “millions of lawyers in our litigious society,” as George Will would have us believe.
The memo writers twisted the language of the relevant federal statutes and ignored international law as a means to achieve the Bush administration’s desired results. The authors aided and abetted the commission of a crime and should be held accountable.
Those who rendered the opinions were not counsel to the president nor to the CIA but directors of the Office of Legal Counsel in the Department of Justice. The office boasts a proud tradition as outside counsel to the country’s chief executive and its “best practices” call for “giving candid, independent, and principled advice – even when that advice may be inconsistent with the desires of policymakers.”
Jay Bybee, who now is a federal judge, wrote the first memorandum on Aug. 1, 2002. It is poorly reasoned: Counsel to the CIA asked Bybee whether 10 interrogation techniques – ranging from “walling” and “facial slap” to “waterboard” – constituted torture. CIA officials wanted to use the methods on Abu Zubaydah, an al Qaeda official, who was being held in Thailand.
The statute makes the commission of torture outside of the United States, by anybody acting under color of law, a crime, and defines torture as the specific intent “to inflict severe physical or mental pain or suffering … upon another person” in custody.
Bybee found that no part of the statute would apply to any of the techniques. The interrogators would lack the specific intent because “the objective of these techniques is not to cause severe physical pain.” Sound circular?
Medical personnel would intervene if the interrogation got too rough, and the CIA assured Bybee that Zubaydah’s general physical condition, already poor, would not worsen.
Bybee went further, writing that waterboarding, by definition, cannot cause physical pain, just create the sensation of drowning, an illusion. The sensation is a form of mental harm, but, in order to be considered criminal, the harm must last “months or years.” Removing a cloth over the victim’s nose and mouth provides “immediate relief” and negates the risk of “severe” mental harm.
Tell that to the victim, whose body screams out that he is about to die.
Relying on the memorandum, the CIA waterboarded Zubaydah 83 times in August 2003.
Why?
We do not know absent an investigation. Some have suggested that those later sessions were aimed at finding a link between Iraq and al Qaeda as the Bush administration tried to justify our invasion of Iraq.
If that is true, we now have an ugly picture of America using torture to obtain information to support a premeditated act. According to that view, the techniques served a political agenda and did not protect America.
Article II of the U.S. Constitution, which enumerates the powers and responsibilities of the president, states in part that the executive “shall take Care that the Laws be faithfully executed.”
Without question, the CIA violated federal and international laws against torture. Other parts of the Bush administration not only failed to prevent the violations but, as the memorandums reveal, actively participated in their commission.
President Obama’s administration can re-establish the rule of law by pursuing legal action against the violators. Doing so would be consistent with the president’s constitutional charge; not doing so would be a de facto endorsement of lawlessness. It’s not a question of looking backward or forward.
America must move forward, but, at the same time, we must fully understand the origins and consequences of our engaging in torture. If we forgo the review, we will lose the opportunity to learn from our mistakes.
Scott Forsyth is a partner in Forsyth & Forsyth in Rochester, N.Y., and serves as counsel to the local chapter of the ACLU. He may be contacted at [email protected].
