Fixing the Facts and Legal Opinions Around the Torture Policy: The Case for 'Looking Forward' to the Impeachment of Jay S. Bybee

Fixing the Facts and Legal Opinions Around the Torture Policy: The Case for 'Looking Forward' to the Impeachment of Jay S. Bybee
Guest Blogged by Ernest A. Canning | BradBlog

At the same time he took a step forward, releasing the four Justice Department torture memos he described as a "dark and painful chapter in our history," President Barack Obama assured CIA employees, who tortured under cover of these quasi-legal sophistries, they would not be prosecuted. The President said this was "a time for reflection, not retribution...nothing will be gained by spending our time and energy laying blame for the past." White House Press Secretary Robert Gibb explained that the President insisted on "looking forward." U.S. Attorney General Eric Holder not only seconded the President's promise not to prosecute, but vowed to provide legal counsel to defend these war criminals and to pay the damages awarded to their victims.

Great Britain's Times Online, quoting an unnamed former official, suggested there may be cases where the CIA exceeded the DOJ guidelines; perhaps even killed detainees. The President's hint at immunity does not extend to officials who exceeded the guidelines. Although the President, in his remarks, made no mention of those who ordered torture, White House Chief of Staff Rahm Emanuel told ABC's George Stephanopoulos last Sunday that the President did not believe "those who devised the policy" should "be prosecuted."

The President's promise not to prosecute generated a firestorm of protest from the legal community. Law Professor Jonathan Turley blasted the effort to equate law enforcement with "retribution."

He is trying to lay the ground work for principle when he is doing an unprincipled thing....President Obama himself has said that waterboarding is torture, and torture itself violates four treaties and is considered a war crime. So the refusal to allow it to be investigated is to obstruct a war crimes investigation.…There aren't any convenient or inconvenient times to investigate war crimes. You don't have a choice....You have an obligation to do it, and what I think the President is desperately trying to do is to sell this idea that somehow it's a principled thing not to investigate war crimes because its going to be painful…It will be politically unpopular because an investigation will go directly to the doorstep of President Bush…and there's not going to be a lot of defenses that can be raised for ordering a torture program.

Rep. Jan Schakowsky (D-IL) who serves on a House Intelligence Sub-Committee, added fuel to the firestorm by contrasting the President's advancement of the "I was only following orders" defense to the principles our nation applied at Nuremberg after WWII. Manfred Nowak, the UN special rapporteur on torture, said the President's refusal to prosecute violates the UN Convention Against Torture.

Before discussing the refreshing news that we have a President who, in the face of such a powerful critique, is not afraid to reverse course, let's consider what it means to "look forward" given that the principle author of these torture memos, Judge Jay S. Bybee, now sits on the 9th Circuit Court of Appeal, passing judgments on others. Absent incapacity or impeachment, there he will stay for the rest of his life...

Recalibrating Obama's Moral Compass

By the morning of April 21, The New York Times reported that "administration officials" were now saying "Emanuel meant" only that the President did not want "officials who ordered the policies carried out" to be prosecuted. "The lawyers who provided the legal rationale" are apparently fair game. By the afternoon, London's Guardian reported that the President now says the decision whether to prosecute "Senior members of the Bush administration who approved" torture rested with the Attorney General. The President referred to torture as America's loss of its "moral bearings."

As I noted previously, in "Prosecute or Perish," the President's illogical formulation of not looking back was incompatible with the very essence of the rule of law. It is only by "exploring the the dark recesses of our past" that "we can develop a light for examining --- and changing --- the future." (John Perkins, The Secret History of the American Empire (2007)). The rule of law, by definition, entails investigation of and prosecution for crimes previously committed.

There's no denying the intellectual capacity of our charismatic President. His ability to deliver uplifting oration is second to none. Yet, his political instinct to seek out the center exposed a critical moral flaw. When it comes to torture and to the very foundation of the rule of law, there is no "common ground." The President and the Attorney General have both taken a solemn oath to faithfully execute the law. To refuse to enforce the law is to obstruct justice.

It is not enough that the President has said that the Attorney General may look to prosecute those who ordered torture. We must insure that he and the Attorney General resist the temptation to again seek a middle ground where there is none, lest they destroy their own "moral bearings." Turley suggests the best way to insure that is by way appointing a truly independent career prosecutor to act as a special prosecutor. The activists' petition which asks the AG to appoint that special prosecutor would certainly serve to steady Eric Holder's moral compass. But, as Elizabeth de la Vega, a former federal prosecutor with 20 years of experience, has forcefully argued the immediate appointment of a special prosecutor potentially entails serious draw backs, making it, in her opinion, a poor tactical choice.

A jolt is needed to insure that the President's moral compass points true north. That jolt requires a repetition of that shining moment when Rep. Dennis Kucinich (D-OH) stood on the floor of the House of Representatives and briefly seized hold of the nation's conscience by reading aloud 35 articles of impeachment against George W. Bush. What America and the rule of law need is for the Honorable John Conyers, Chair of the U.S. House Judiciary Committee, to initiate hearings to determine whether now-Circuit Court Judge Bybee should be impeached --- hearings at which Congress would have the right to fully investigate what went on inside the CIA's hidden dungeons.

Accomplice to Torture

As noted in the March 29, 2009 update to "Prosecute or Perish," Judge Bybee is the target of a criminal complaint filed by Spanish prosecutors pursuant to the Geneva Conventions and the 1984 Convention Against Torture. The evidence against Bybee is his own words, recorded in a long-ago released memo to Alberto Gonzales interpreting the 1984 Convention Against Torture as implemented by U.S. statutes. To appreciate the gravity of the legal gymnastics Bybee performed, consider first, The Third Geneva Convention:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

The federal statute, which implements the 1984 Convention Against Torture, proscribes "any act" which intentionally inflicts "severe pain or suffering...whether physical or mental" for the purpose of extracting "information or a confession." "Mental pain or suffering refers to prolonged mental harm caused by-- [emphasis added]

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

As the Bybee/Gonzales memo confirms, a provision of the USA/Patriot Act makes conspiracy to commit torture a crime.
The Bybee/Gonzales memo reflects the twisted reasoning of a Mob lawyer. Focusing on the words "severe pain and suffering," Bybee claimed an act would not amount to torture unless the physical pain inflicted was equal in "intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Bybee construed the "application, or threatened...application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality" to include only those acts which "penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality."

While Bybee graciously conceded that driving someone "to the brink of suicide," "a drug-induced dementia" or "significant memory impairment" would qualify as "a profound disruption of the senses or personality," he asserted the abuse must produce "psychological harm of significant duration, e.g., lasting for months or even years" before it met the statutory definition of torture. "The waterboard," though it constitutes a threat of "imminent death," would not be a war crime, in Bybee's view, unless it produced "psychological harm of significant duration."

The reasoning of Bybee --- again, he's now a federal judge with a lifetime appointment --- would have produced a failing grade for a first year law student. "Other procedures calculated to disrupt" focuses on the method employed by the torturer, not the ultimate harm inflicted on the victim.

In recognition that his interpretation of U.S. war crimes statutes was pure B.S., Bybee's memo to Gonzales turned to "Unitary Executive" theory. He made the astounding claim that even if Congress intended to proscribe torture, "the Department of Justice could not enforce [the statute] against federal officials acting pursuant to the President's constitutional authority to wage a military campaign."

The newly released memos include an Aug. 1, 2002 memo [PDF] from Bybee to John Rizzo, the Acting General Counsel of the CIA. In it, Bybee sanctioned the use of ten techniques which the CIA intended to apply in interrogating suspected terrorist Abu Zubaydah. The techniques included "walling," "cramped confinement," "wall standing," "stress positions," "sleep deprivation," "insects placed in a confinement box" and "the waterboard."

Walling entails slamming the detainee into a flexible wall. Wall standing entails an individual made to stand [emphasis added] "four to five feet from a wall, with his feet spread....His arms are stretched out in front of him, with his fingers resting on the wall...[supporting] all of his body weight. The individual is not permitted to move or reposition his hands or feet." Stress positions, as applied to Zubaydah, would likely include "sitting on the floor with legs extended straight in front...arms raised above his head; and...kneeling on the floor while leaning back at a 45 degree angle." Bybee's memo notes that Zubaydah appeared "quite flexible despite his wound," but the nature of the wound is not described.

Recall that during WWII it only took the Japanese Kempetai a single waterboarding session, albeit over the span of hours with multiple lapses of consciousness, to convince my father to sign a false confession that he was a British agent, even though my father believed he was signing his own death warrant. A separate May 30, 2005 memo from the DOJ's Stephen Bradbury [PDF] revealed that Zubaydah was waterboarded 83 times in August 2002.

The Washington Post reported:
In the end, though, not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions....Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida --- chiefly names of al-Qaeda members and associates --- was obtained before waterboarding was introduced.

The question naturally arises as to whether 83 waterboarding sessions reflects a degree of sadism or efforts akin to "fix[ing] the facts and the intelligence around the policy", as the Bush Administration is alleged to have done, in order to take the nation into war in Iraq, as reported in the "Downing Street Memo". Or maybe it was both.

Democracy Now reports: "In 2007, a former CIA officer publicly claimed that Abu Zubaydah had undergone waterboarding for only thirty-five seconds before agreeing to tell everything he knew." The Bradbury memo reveals that the supposed "9/11 mastermind" Khalid Sheikh Mohammed was waterboarded 183 times in March 2003, which just happens to be the month of the invasion of Iraq.

Bybee, who made a transparent effort at CYA by limiting his opinion to the facts provided by Rizzo, seemed to draw comfort in Rizzo's assertion that the CIA did not intend to "deprive Zubaydah of sleep for more than eleven days at a time." Time and again, Bybee claimed the techniques would neither inflict "severe physical pain and suffering" nor cause "long-term psychological effects."

Anyone familiar with the CIA's research and application of the twin techniques of sensory deprivation and self-inflicted pain would tell you that the opposite is true.

A Half-Century of CIA Torture

The CIA's involvement in torture did not begin in the post-9/11 era. As Prof. Alfred McCoy explained during a stunning and explosive Feb. 17, 2006 interview on Democracy Now, in "the most famous of photographs from Abu Ghraib, of the Iraqi standing on the box, arms extended with a hood over head and the fake electrical wires from his arms…you can see the entire 50-year history of CIA torture."

The photo embodies two basic CIA techniques, sensory deprivation and self-inflicted pain. "From 1950 to 1962, the CIA ran a massive research project, a veritable Manhattan Project of the mind, spending over $1 billion a year to crack the code of human consciousness, from both mass persuasion and the use of coercion in individual interrogation….They tried LSD,…mescaline,…all kinds of drugs,…electroshock, truth serum, sodium pentathol. None of it worked." The first breakthrough, McCoy says, came via a joint CIA/Canadian Research Board study conducted by Dr. Donald O. Hebb at McGill University, who persuaded "student volunteers" to participate in a study where they would be subjected to sensory deprivation. "Within 48 hours,…they would suffer, first hallucinations, then ultimately breakdown." The second breakthrough came via the research analysis of two eminent Cornell University Medical Center neurologists, who, in evaluating Soviet torture techniques, discovered that pain was most effective when "self-inflicted."

McCoy addressed the issue of self-inflicted pain in A Question of Torture (2006). Where Bybee made the remarkable claim that "wall standing" --- in which a victim's fingers must support his entire body weight --- merely induces muscle fatigue, McCoy points to a 1956 CIA-commissioned, Cornell University study of KGB torture techniques which revealed that the simple act of standing in place for eighteen to twenty-four hours produces "'excruciating pain' as ankles double in size, skin becomes 'tense and intensely painful,' blisters erupt oozing 'watery serum,' heart rates soar, kidneys shut down, and delusions deepen."

The research on sensory deprivation and self-inflicted pain led to publication of the formerly secret CIA manual KUBARK Counterintelligence Interrogation-July 1963.

I'll try to offer more detail in a future article, on the inter-generational CIA complicity in torture. But suffice to say for the moment, if such practices are not finally brought to an end, once and for all, hopefully through accountability for those who justified them --- fixing the facts around the policy --- the President's promise that it won't happen again is little more than a vague wish.

We need accountability in hopes of looking forward, not back, beginning with U.S. House Judiciary Hearings on the matter of the Impeachment of Judge Jay S. Bybee.

Note: You can join with The New York Times in calling for Bybee's impeachment by signing the petition now being circulated by the Center for Constitutional Rights, right here.

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Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of civil litigation and workers' compensation at both the trial and appellate levels. He graduated cum laude from Southwestern University School of Law where he served as a student director of the clinical studies department and authored the Law Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA. He is also a Vietnam vet (4th infantry, Central Highlands 1968).