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Jul-25-2008Justice Advised CIA in '02 About Legal Waterboarding(topic overview)
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One of the architects behind the Aug. 1, 2002 memo is Michael Chertoff, the director of the Department of Homeland Security. In the summer of 2002, Chertoff, then head of the Justice Department'''s Criminal Division, offered assurances to the CIA that its interrogators would not face prosecution under anti-torture laws if they followed guidelines on aggressive techniques approved by the Department'''s Office of Legal Counsel, where Yoo worked. Those guidelines stretched the rules on permissible treatment of detainees by narrowly defining torture as intense pain equivalent to organ failure or death. Specific interrogation techniques were gleaned from a list of methods that the U.S. military feared might be used against American soldiers if a ruthless enemy captured them. Three years ago, when Chertoff was facing confirmation hearings to be Homeland Security chief, the New York Times cited three senior-level government sources as describing Chertoff'''s Criminal Division as fielding questions from the CIA about whether its officers risked prosecution if they employed certain harsh techniques. '''One technique the CIA officers could use under circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning,''' according to the Jan. 29, 2005 Times article. [1] The Justice Department in 2002 told the CIA that its interrogators would be safe from prosecution for violations of torture laws if they believed "in good faith" that harsh techniques used to break prisoners' will would not cause "prolonged mental harm." That heavily censored memo, released Thursday, approved the CIA's interrogation techniques method by method but warned that if the circumstances changed, interrogators could be running afoul of laws against torture. The Aug. 1, 2002, legal opinion signed by then- Assistant Attorney General Jay Bybee was issued the same day that he wrote a memo for then-White House Counsel Alberto R. Gonzales defining torture as only those "extreme acts" that cause pain similar in intensity to that caused by death or organ failure.[2] The Bybee memo was written by John Yoo, a former deputy attorney general at the OLC preceded a second August 2002 legal opinion about CIA interrogation methods leaked to the media in 2004. Both memos were later rescinded. The Aug. 1, 2002 legal opinion was based on a statute governing health benefits when he provided the White House with a legal opinion defining torture, according to a former Justice Department official.[1]
The closely guarded Aug. 1, 2002 memo contains provided the Bush administration with the legal framework to use '''alternative interrogation methods''' against suspected terrorists captured in the war on terror. The heavily redacted document, obtained by the American Civil Liberties Union under a Freedom of Information Act request, was signed by then Assistant Attorney General Jay Bybee and specifically outlined approved methods the CIA could use, such as waterboarding, during interrogations.[1] In a memo sent to the CIA, the Justice Department in 2002 said interrogators would be safe from anti-torture prosecutions if they believed in good faith that their actions would not cause "prolonged mental harm." The comments were made in a memo signed by Jay Bybee, then an assistant attorney general. It was obtained by the American Civil Liberties Union under a federal Freedom of Information Act request.[3]
The memos were made public by the American Civil Liberties Union, which obtained the three CIA-related documents under Freedom of Information Act requests. "These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody," said Jameel Jaffer, director of the ACLU National Security Project.[4] The American Civil Liberties Union obtained several internal Bush administration documents it says authorizes the CIA to torture detainees. 'These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody,' Jameel Jaffer, Director of the ACLU National Security Project, said in a news release.[5]
WASHINGTON (CNN) -- The Bush administration told the CIA in 2002 that its interrogators working abroad would not violate U.S. prohibitions against torture unless they "have the specific intent to inflict severe pain or suffering," according to a previously secret Justice Department memo released Thursday.[4] Although any references to waterboarding have been scrubbed from the released Bybee memo, the government handed over to the ACLU a 2004 memo from the CIA that referrs to the "classified August 2002 DoJ opinion stating that interrogation techniques including the waterboard, do not violate the Torture Statute." The same memo raises the prospect of "future U.S. judicial review of the Program," referencing the Supreme Court's decision that year in Rasul v. Bush. A 2003 memo from the CIA to the Justice Department clarifying that "Enhanced Techniques" fall under those permissible by CIA headquarters, although it seems also to raise the possibility that even more coercive techniques could be "approved by Headquarters."[5] "The Justice Department twisted the law, and in some cases ignored it altogether, in order to permit interrogators to use barbaric methods that the U.S. once prosecuted as war crimes.''' In June, House Democrats sent a letter to Attorney General Michael Mukasey Friday requesting that he appoint a special prosecutor to investigate whether White House officials, including President Bush, violated the War Crimes Act for allowing enhanced interrogation techniques to be used against suspected terrorists. '''We believe that these events alone warrant action, but within the last month additional information has surfaced that suggests the fact that not only did top administration officials meet in the White House and approve of the use of enhanced techniques including waterboarding against detainees, but that President Bush was aware of, and approved of the meetings taking place,''' the letter, dated June 6, says.[1] The Abu Zubaydah case was the first time that waterboarding was used against a prisoner in the '''war on terror,''' according to Pentagon and Justice Department documents, news reports and several books written about the Bush administration'''s interrogation methods. In The One Percent Doctrine, author Ron Suskind reported that President George W. Bush had become obsessed with Zubaydah and the information he might have about pending terrorist plots against the United States.[1]
The ACLU says the CIA initially refused to confirm or deny the existence of the memo. It says the agency dropped that position after President Bush disclosed in 2006 that the CIA had been operating detention centers overseas. The memo was one of three such documents the ACLU obtained that request legal advice from the Justice Department on interrogation techniques. Some information for this report was provided by AP.[6] Army Vet's Suicide Raises Questions About VA's Treatment of PTSD Cases Rep. Ackerman Defends Iran Sanctions Measure, But Critics Call it An Act of War Conyers Plans Impeachment Substitute Reasons to Oppose Drilling in ANWR Found in Alaska's North Slope Squabbling Over the Pigeon Bill Kucinich: 'How Many More Hearings to Prove Pres. Secret "Torture Memo" Gave Legal Cover to Interrogators Who Acted in "Good Faith" A Justice Department legal opinion issued in August 2002 advised the CIA that its interrogators would not be prosecuted for violating anti-torture laws as long as they acted in '''good faith''' while using brutal techniques to obtain information from suspected terrorists, according to a previously undisclosed memo released publicly Thursday.The closely guarded Aug. 1, 2002 memo contains provided t.[1] Anything short of that standard, that memo argued, was legal under the Federal Torture Statute. This newly declassified memo was an attempt at practicality: given the legal standard laid out in the first memo, Yoo-Bybee II advised the CIA on specific interrogation techniques that were now permissible. "You have asked this Office's views on whether certain proposed conduct would violate the prohibition against torture," Bybee wrote to the CIA on Aug. 1, 2002. It is impossible to know for sure what exactly the memorandum says, thanks to its heavy redactions. It appears that the Yoo-Bybee II memo explains how CIA interrogators can evade prosecution for torturing detainees.[7] One of the most important building blocks in the Bush administration's apparatus of torture became public today. An Aug. 1, 2002 memorandum from the Justice Dept.' s Office of Legal Counsel to the Central Intelligence Agency instructed the agency's interrogators on specific interrogation techniques for use on Al Qaeda detainees in its custody.[7] Today, the ACLU obtained and released a redacted version of one of the most important building blocks in the Bush administration's architecture of torture -- the very, very, closely-held August 2002 memo, known as "Yoo-Bybee II," from the Justice Dept.' s Office of Legal Counsel that authorized the CIA to perform specific methods of torture when interrogating Al Qaeda detainees.[8] Today, the ACLU (with whom, as I've previously disclosed, I consult on various matters) released three formerly secret Bush administration memos -- two from the CIA to the Office of Legal Counsel inside the DOJ, and one from OLC to the CIA -- which set forth, in a revoltingly clinical tone that is by now all-too-familiar, extremely permissive standards for what constitutes (and what does not constitute) "torture."[9]
We just don't live in an open society, as most of the most consequential actions in which our Government engages are undertaken behind an increasingly impenetrable wall of secrecy. The vast bulk of these memoranda consist of nothing more than legal arguments as to why the Bush administration claimed it had the authority -- as the ACLU's Jameel Jaffer put it -- "to permit interrogators to use barbaric methods that the U.S. once prosecuted as war crimes." There is absolutely no justification whatsoever for these Memoranda to be concealed from the public. All they do is set forth the Executive Branch's purported understanding of the law. Yet it was only because the ACLU relentlessly pursued protracted litigation that the CIA was ordered to turn over these documents and we learned about them. That's the same way we learned about the 81-page Memorandum authored in 2003 by John Yoo that provoked such disgust back in April (that's the Memo that calmly analyzed whether "'scalding water, corrosive acid or caustic substance' thrown on a prisoner" was legal and which noted that a prior, still-secret OLC Memorandum had concluded " that the Fourth Amendment had no application to domestic military operations ").[9] OLC'''s clumsily definitional arbitrage didn't seem even in the ballpark." Yoo, who now teaches at the University of California at Berkeley, also drafted a March 14, 2003 document, nearly identical to the August 2002 memo he authored, that essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners. The ACLU under a FOIA request also obtained that document earlier this year. "If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network," Yoo wrote in the March 14, 2003 opinion. "In that case, we believe that he could argue that the Executive Branch's constitutional authority to protect the nation from attack justified his actions."[1]
The ACLU also obtained two other documents from the Justice Department'''s Office of Legal Counsel revolving around the CIA'''s interrogation methods.[1] Government censors have been busy: Perhaps 95% or more of the two multi-page documents in the set -- an 18-page August 1, 2002, Justice Department Office of Legal Counsel (OLC) memo to the CIA, and a 3-page January 23, 2003, CIA memo to OLC -- are entirely redacted.[10]
The Justice Department's Office of Professional Responsibility (OPR) launched a formal investigation to determine whether agency attorneys, including Yoo and Bybee, provided the White House with poor legal advice when it drafted the legal opinions. In a Feb. 18, letter sent to Sen. Dick Durbin, the Illinois Democrat who requested the probe, H. Marshall Jarrett, the head of OPR, said his office intends to question Yoo, and his former boss, Jay Bybee, the former head of OLC, now a federal appeals court judge in San Francisco, who signed the '''torture memo.''' "Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys," Jarrett's letter says, adding that his office may release the findings of the investigation publicly.[1] Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. The Aug. 1, 2002 memo signed by then-Assistant Attorney General Jay Bybee was issued the same day he wrote a memo for then-White House Counsel Alberto Gonzales defining torture as only those "extreme acts" that cause pain similar in intensity to that caused by death or organ failure. That memo was later rescinded by the Justice Department.[11] "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture," Jay Bybee, then the assistant attorney general, wrote in the memo. The 18-page memo is heavily redacted, with 10 of its 18 pages completely blacked out and only a few paragraphs legible on the others. Another memo released Thursday advises that "the waterboard," or simulated drowning, does "not violate the Torture Statute." It also cites a number of warnings against torture, including statements by President Bush and a then-new Supreme Court ruling "which raises possible concerns about future U.S. judicial review of the Program."[4]
The three previously secret documents released to the press on Thursday by the ACLU included memos signed by then-Assistant Attorney General Jay Bybee, then-CIA Director George Tenet and an unsigned one. The 18-page memo signed by Bybee authorizes interrogators to use torture if they believed 'in good faith' that the harsh methods would not cause "prolonged mental harm" to the prisoners.[12]
"Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture," Jay Bybee wrote in the memo. The second memo signed by Tenet gave the interrogators the authority to use both "enhanced techniques" and "standard techniques," but it forbid them from using methods not "approved by headquarters."[12]
A Jan. 28, 2003 memo shows that the OLC gave CIA interrogators legal cover to use torture practices known as "enhanced interrogation techniques." The memo also says that, for each session in which these techniques were used, the CIA documented, among other things, "the nature and duration of each such technique employed" and "the identities of those present." The undated 2004 memo shows that CIA interrogators were assured that certain interrogation methods, such as '''the waterboard,''' did not constitute torture and could be used during interrogations.[1] Even with all that's been cut, there is still enough here that is troubling. As early media reports have pointed out -- such as this one from the Associated Press -- the August 2002 OLC memo purports to give CIA interrogators a "good faith" defense to criminal prosecution for torture so long as they do not believe their cruel techniques would cause "prolonged mental harm." Perhaps even more ominous is the January 2003 CIA memo, which suggests that CIA agents anywhere in the world have blanket permission to use both standard and "enhanced" interrogation techniques -- collectively labeled in the memo as the "Permissible Interrogation Techniques." More ominous still? In stating that these "Permissible Interrogation Techniques" are all that CIA agents may use " nless otherwise approved" by CIA headquarters, the memo suggests that at the CIA there has been some category of interrogation techniques even more enhanced than the known "enhanced" techniques -- such as waterboarding -- that themselves are clearly torture.[10]
Most of the text on the remaining pages was similarly blacked out, but the released version of the Bybee memo does provide some insight. Bybee outlined the definition of torture in Section 2340A of the United States code, focusing in part on its caveat that an act be "specifically intended to inflict severe physical or mental pain or suffering." Elaborating on his definition of the "specific intent" provision, Bybee narrows the definition to the point where it become functionally meaningless. All that is required to avoid prosecution is a CIA agent's "good faith belief" that his actions will not cause torturous pain and suffering. Such a belief "need not be reasonable," Bybee writes.[5] Raw Story's Nick Juliano has an excellent summary of the memos' lowlights, including the assertion that treatment of detainees does not constitute "torture" as long as there is no "specific intent to inflict severe pain or suffering," and the claim that interrogators are free to inflict mental harm as long as it falls short of "harm lasting months or even years after the acts were inflicted upon the prisoners."[9]
As long as CIA agents could convince themselves they were not deliberately inflicting severe pain or suffering on detainees, they were free to do virtually anything in their questioning of suspected terrorists, including waterboarding. The agents' belief they weren't in fact torturing their captives didn't even need to be "reasonable." These are the implications of a controversial August 2002 memo from the Justice Department to the CIA that was released Thursday.[5] The Justice Department in 2002 told the CIA that its interrogators would be safe from prosecution for violations of anti-torture laws if they believed in. Former Attorney General John Ashcroft on Thursday disavowed the now-defunct legal reasoning used to justify harshly questioning terrorism suspects, but dug in his heels to.[2] With Justice For All? Well, Not So Much As the long'''awaited trial of Guantanamo detainee Salim Ahmed Hamdan opened this week at the U.S. naval base in Cuba, human rights groups filed suit demanding that the Department of Justice (DOJ) produce documents related to the U.S. government'''s ghost detention, torture, and extraordinary rendition program, and Attorney General Michael Mukasey called on Congress to quickly pass new legislation.[1]
The government blacked out 10 full pages of the 18-page August 2002 memo, written by then-Assistant Attorney General Jay Bybee, before releasing it in response to a Freedom of Information Act request.[5] The memo, which is dated August 2002, was obtained by the American Civil Liberties Union under the Freedom of Information Act. It states that techniques such as waterboarding - a form of simulated drowning - are legal as long as they do not cause prolonged mental or physical harm.[6] Most of the 17-page memo is blacked out and unreadable. At least one of those techniques is waterboarding, the process of pouring water into the mouth and nostrils of a detainee under restraint until drowning occurs. "This is a critical piece of the story," said Jameel Jaffer, head of the national security project at the American Civil Liberties Union, which obtained the memorandum under a Freedom of Information Act filing. "This is the most explicit statement out there that the CIA waterboarded prisoners becaused the Justice Dept. authorized them to do so."[7]
"Intelligence gained using the interrogation techniques has saved Americans lives and property," the unsigned memo read. The ACLU, which released the secret documents dealing with CIA's interrogation programs, obtained them under Freedom of Information Act requests.[12] The ACLU today released three documents -- in essence, three additional "Torture Memos" from 2002-04 -- that the Bush administration has refused to disclose before now. The ACLU obtained the documents through its continuing Freedom of Information Act (FOIA) litigation against the administration. To say the Bush administration has finally now "disclosed" these memos actually is a bit of an overstatement.[10] '''While the documents released today do provide more information about the development and implementation of the Bush administration's torture policies, even a cursory glance at the documents shows that the administration continues to use 'national security' as a shield to protect government officials from embarrassment, criticism and possible criminal prosecution," said Jameel Jaffer, Director of the ACLU National Security Project.[1]
The ACLU first requested the documents it released Thursday in a FOIA lawsuit filed in 2004. While the documents provide some more evidence of torture during George W. Bush's presidency, the ACLU says his administration continues to do all it can to avoid full scrutiny.[5]
In a second memo, dated Jan. 28, 2003, then-CIA Director George J. Tenet authorized CIA officers to interrogate a terror suspect using an "enhanced technique" and ordered a record to be kept of it as the interrogation was happening. Jameel Jaffer, director of the ACLU's national security project, said the interrogation records, if released, could be used as evidence by defendants in military tribunals at Guantanamo Bay, Cuba, to prove they were tortured or coerced. A third document released Thursday is undated but likely written in 2004. It addresses a planned interrogation, saying that it should go forward only with the clear understanding of all policies pertaining to the treatment of prisoners.[2] The third document released Thursday was blacked out except for a line saying "Unless otherwise approved by Headquarters, CIA officers (redacted) may use only Permissible Interrogation Techniques.[4]
Chertoff appears to have green-lighted the technique known as '''waterboarding,''' which has been regarded as torture since the days of the Spanish Inquisition. During his Senate confirmation hearings in February 2005, Chertoff denied providing the CIA with legal guidance on the use of specific interrogation methods, such as waterboarding. He said he gave the agency broad guidance in response to questions about interrogation methods. "You are dealing in an area where there is potential criminality," Chertoff said in describing his advice to the CIA. "You better be very careful to make sure that whatever you decide to do falls well within what is required by law."[1] Yoo's legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture. Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, Yoo wrote, therefore was not considered to be torture.[1]
The Bush administration maintains waterboarding was legal when it was used by CIA interrogators in 2002 and 2003 against top al Qaeda detainees Khalid Shaikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri.[2] The new documents indicate that senior Bush administration officials were aware of the controversial and potentially problematic use of certain interrogation methods, including waterboarding.[2] Bush administration memos authorizing harsh interrogation techniques have been made public starting in 2004.[2] The memo approved proposed interrogation techniques for al Qaeda suspects who were resistant to traditional methods.[2] The interrogation techniques were derived from the Army and Air Force'''s Survival, Evasion, Rescue, and Escape (SERE) training program. Those techniques were meant to prepare U.S. soldiers for abuse they might suffer if captured by a brutal regime, not as methods for U.S. interrogations.[1]
The military has conducted more than a dozen investigations into torture committed by officers and enlisted personnel, and has prosecuted many offenders. The CIA has conducted only one quasi-investigation, performed by its inspector general, John Helgerson. (For that, Helgerson found himself investigated by the office of CIA Director Michael Hayden.) "It's very easy to make a case for a serious criminal investigation," Jaffer said. "There is copious evidence at this point that senior officials authorized torture, and as a result of the authority given to them by senior officials, CIA interrogators tortured prisoners in their custody. It's a disgrace there hasn't been a serious investigation of why CIA adopted interrogation methods that amount to torture and what happened as a result."[7] "Far too much information is still being withheld.''' '''These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody," Jaffer added.[1] Reports say the CIA waterboarded three "high-value detainees," including Khalid Sheikh Mohammed, although former Justice Department official Daniel Levin suggested in congressional testimony in June that there had been more than three instances of the practice, which critics call torture.[4]
Justice Department spokesman Peter Carr said the conclusions of the opinion approving specific interrogation methods are still in force.[2]
A newly released memo shows the U.S. Department of Justice told the Central Intelligence Agency in 2002 that violations of anti-torture laws were acceptable under certain conditions.[6] Almost the entire memo is redacted, but it reads a lot like legal guidance on how CIA interrogators can break anti-torture laws and get away with it.[8] The August 4, 2004 CIA memo (.pdf) specifically noted that "the waterboard" (sic) is not "torture," and it further points out that the President ordered that the Geneva Conventions are not always to be complied with, but rather, only "to the extent appropriate and consistent with military necessity." The same memo also pointedly notes that the Durbin Amendment -- which bars the use of torture and "cruel, inhuman and degrading treatment" in all circumstances -- "is not, as of now, law." What's particularly notable here -- beyond the fact that this is further proof that our Government has engaged in deliberate, systematic and illegal torture -- is what a closed, secretive society we've become.[9] The fear of a change in that standard by a piece of 2004 legislation is included in the just-released 2004 CIA memo. A proposed amendment by Sen. Dick Durbin (D-Ill.) to the year's defense authorization bill stated, "no person in the custody or under the physical control of the United States" shall be tortured, and the CIA sent that language, underlined, to the Justice Dept. for advice on its implications. It is unclear how Justice replied, if at all. (The amendment passed, but it is unclear what effect it had.)[7]
When it comes to mental duress, the Justice Dept. wrote that the "exclusive" prohibitions under the Federal Anti-Torture Statute were "the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application of mind altering substances or procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that any of the preceding acts will be done to another person." It would not be permissible to cause "prolonged mental harm," defined in the Yoo-Bybee II memo as "harm lasting months or even years after the acts were inflicted upon the prisoner."[7] '''To validate the statute, an individual must have the specific intent to inflict severe pain or suffering," the Aug. 1, 2002 memo says.[1] "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent."[7]
The interrogator's "good faith" and "honest belief" that the interrogation will not cause such suffering protects the interrogator, the memo adds.[4] A third memo instructs interrogators to keep records of sessions in which "enhanced interrogation techniques" are used.[4] Virtually all of the four-page memo is redacted, but the memo does make clear that in interrogations using Enhanced Techniques, "a contemporaneous record shall be created setting forth the nature and duration of each technique employed."[5]
The Aug. 1, 2002 memo was prepared the same month the CIA moved to employ a more extreme form of interrogation against al-Qaeda operative Abu Zubaydah.[1] "The CIA was seeking to determine the legal limits of interrogation practices for use in cases like that of Abu Zubaydah, the Qaeda lieutenant who was captured in March 2002," according to a Jan. 29, 2005 http://www.nytimes.com/2005/01/29/politics/29home.html?_r=4&adxnnl=1&oref=slogin&adxnnlx=1208621184-eZ1xx4HKUUhfn5SyRAFcew New York Times article.[1] The memo defends interrogations but warns authorizers to be fully aware of the then-emerging international and U.S. legal debate surrounding the issue.[2] Even the memos which the ACLU obtained -- between four to six years old -- are heavily redacted, with the vast bulk of the legal conclusions of our Government simply blacked out (.pdf).[9] Time's Joe Klein said last year that objections to the Senate's warrantless eavesdropping bill were merely "fodder for lawyers and civil liberties extremists " -- a phrase which GOP Rep. Pete Hoekstra then praised in National Review. The very same Beltway denizens who have so submissively enabled the radicalism of this administration simultaneously harbor and continuously spew contempt for those Shrill, Unserious "activists" -- such as the dreaded ACLU extremists -- who challenge and disrupt their little Beltway fiefdom. Even in those rare instances of good investigative journalism -- Dana Priest's CIA black sites exposé and the Risen/Lichtblau disclosure of the NSA program -- most of the disclosures are due primarily to brave whistle-blowers inside the administration who were willing to risk their careers and even their own freedom in order to expose serious government wrongdoing. In addition to Priest and the NYT, there is Charlie Savage and Seymour Hersh and Jane Mayer and other actual journalists who have uncovered serious government wrongdoing, but those are the glaring exceptions. Jonathan Alter can pat establishment journalists on the back as much as he wants, but the record of the establishment press over the last seven years is one characterized far more by failure and complicity than by real journalism. Alter laments that Americans "so distrust the mainstream media" that they "often prefer rumors to facts," but that's a natural and reasonable response to a media that gave us Iraqi mushroom clouds and Jessica Lynch's heroic firefight and Pat Tillman's dramatic confrontation with the Enemy and a whole slew of other government-dependent propaganda and government-promoting myths.[9] Leave aside the question of how much "real reporting" bloggers do as compared to newspapers. If one looks at most of the vital disclosures of the last seven years -- whereby concealed, legally dubious behavior of one of the most secretive administrations of the modern era is exposed -- one finds that such exposure comes overwhelmingly from two sources: (1) conscientious whistle-blowers inside the Government, and (2) advocacy groups such as the ACLU, which have tirelessly waged one litigation battle after the next in order to unearth the Bush administration's secret, improper conduct.[9]
The Bush administration has consistently denied that the United States tortures detainees.[4]
Last month, however, Physicians for Human Rights released a study of 11 torture survivors from U.S. detention facilities in Iraq, Afghanistan and Guantanamo Bay. All exhibited continuing damage from their treatment, with many reporting depression, substance abuse and attempted suicide. None of those former detainees were subjected to waterboarding.[7] If you didn't really mean to torture a detainee you can't be criminally prosecuted for breaking anti-torture statutes. You will always have deniability. (I suppose, using the same logic, murderers can argue they shouldn't be charged with murder because they really didn't mean to kill their victim). "If I were an American voter, I would vote for Mr. John McCain," Tran Trong Duyet said Friday, sitting in his living room in the northern city of Haiphong, surrounded by black-and-white photos of a much younger version of himself and former Vietnam War prisoners. He denies prisoners of war were tortured. That's really the way it works, isn't it? Torturers will never admit they've tortured. It's all about developing that deniability.[11]
The new Bybee memo was obtained by the American Civil Liberties Union along with two other previously unreleased documents. [2] Here's the ACLU news release on the memo, and here are the document s the group obtained.[3]
Torture-watchers have long referred to the memo, which congressional inquiries identified years ago, as "Yoo-Bybee II." That's because Yoo-Bybee I, written around the same time as this document, contended that it would only be illegal for interrogators to inflict pain upon detainees equivalent to "organ failure, impairment of bodily function or even death."[7]
The Bybee legal opinion defining torture was withdrawn more than two years later.[2] Signed by Jay Bybee, then the head of the Office of Legal Counsel, the memorandum is heavily influenced by the legal theories of Bybee's then-subordinate, John Yoo.[7]
CIA Director Michael V. Hayden banned waterboarding in 2006, but government officials have said it remains a possibility if approved by the attorney general, the CIA chief and the president. [2] The CIA last year destroyed at least two videotapes of enhanced interrogations that may have included waterboarding.[5] The document also warned, however, that using enhanced interrogation methods could ultimately be subject to judicial review.[1]
Today, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York, who has been adjudicating the ACLU's extensive declassification lawsuit against the U.S. government for the past four years, ordered the memorandum released. [7] At another point, the memo contended that in order for the torture to be illegal, it had to occur "outside of the United States." That would help explain why the CIA established the so-called "black sites" -- undisclosed torture chambers -- in Poland, Romania, and other countries.[7]
SOURCES
1. Secret "Torture Memo" Gave Legal Cover to Interrogators Who Acted in "Good Faith"
2. Washington Times - Justice assured agency on use of torture
3. Justice Department memo: It's not torture if it's done in good faith - On Deadline - USATODAY.com
4. Previously secret torture memo released - CNN.com
5. The Raw Story | ACLU: Memos authorized CIA torture
6. VOA News - ACLU: US Justice Department Memo Allows Certain Violations of Anti-Torture Laws
7. Torture Memo Shields Interrogators - The Washington Independent - U.S. news and politics - washingtonindependent.com
8. Yoo-Bybee II: (Sort of) Revealed! - The Washington Independent - U.S. news and politics - washingtonindependent.com
9. Who is doing real journalism? - Glenn Greenwald - Salon.com
10. ETN08: More Bush Admin Memos Offer Up a Defense for Torturers
11. Progressive Politics Examiner - Justice to CIA Torture memos released - Examiner.com
12. RTTNews - Market Sensitive Global News, Broker Ratings, News&Analysis, Global Markets News.
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