The first part of this discussion concerns the immediate issue raised by the release of the torture memos: were crimes committed, and if so, will anyone be held responsible? President Obama specifically ruled out legal proceedings against the agents involved in the interrogations when he ordered the memos released, but questions remain about the authors and architects of the policy. Perhaps the most controversial of the recently-released memos is one that is dated August 1, 2002. In was signed by Jay Bybee, who was at the time Assistant Attorney General at the Office of Legal Counsel. It concerns the interrogation techniques used against Abu Zubaydah, a low-ranking al Qaeda operative.
On the same day, another memo had been authored by Bybee and John Yoo, who was Bybee's deputy at the OLC. Yoo was apparently aided by David Addington, who was legal counsel to Vice President Cheney. That memo sought to define torture in the context of U.S. Code and the International Convention Against Torture. The International Convention Against Torture defines torture "as any act by which intense suffering, whether physical or mental, is intentionally inflicted." That convention was made federal law by the 1995 Torture Implementation Act. Bybee, Yoo, and Addington all had a hand in this memo - although most reports suggest it was primarily written by Yoo - and it argues, essentially, that interrogation techniques constitute torture only if they cause pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." This, apparently, was the lawyers' interpretation of the Convention's language about "intense suffering," at least on a physical level. As for mental suffering, Yoo et. al raised the bar again, arguing that threats of imminent death, threats of intense (torture-like) pain, use of drugs, "permanent" personality alteration, or threatening to do any of the above to a third party were the only acts barred by the prohibition of "intense mental suffering." Their conclusion reflected this expansive attitude toward the law: "We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts."
The first memo I mentioned, which was also dated August 1, 2002 and was written by Bybee, applies this line of reasoning to the interrogation of Abu Zubaydah. This memo was one of the memos released by the Department of Justice on April 16, 2009. It considers the various methods used against the prisoner, including "walling," stress positions, sleep deprivation, and waterboarding. The first technique seems to have been invented by the United States, but the second was perfected by Communist China. The fourth technique, waterboarding, was used during the Spanish Inquistion, by the Gestapo during World War II, and by the Khmer Rouge in Cambodia - in fact, it is solemnly remembered in a torture museum in Cambodia! More importantly, though, it was used by Japanese soldiers against American prisoners in World War II, including against Chase Nielsen, one of the pilots who participated in the Doolittle raid. At the Tokyo War Crimes Trials following the war's end, the United States convicted Japanese officials of torture. Their main charge of torture: waterboarding of captives.
The Bybee memo considers waterboarding, but concludes that it does not meet the level of pain and suffering necessary to be considered torture. Bybee states that waterboarding is not a deadly technique, and it is unlikely to have long-term psychological effects on the victim. On page 15 of his memo, Bybee writes, "We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years [...] (But) you do not anticipate that any prolonged mental harm would result from the use of the waterboard. Indeed, you have advised us that the relief is almost immediate when the cloth is removed from the nose and mouth."
This claim, however, is highly questionable, as Jane Mayer revealed in the New Yorker:
Dr. Allen Keller, the director of the Bellevue/N.Y.U. Program for Survivors of Torture, told me that he had treated a number of people who had been subjected to such forms of near-asphyxiation, and he argued that it was indeed torture. Some victims were still traumatized years later, he said. One patient couldn’t take showers, and panicked when it rained. “The fear of being killed is a terrifying experience,” he said.
Thus we see that there is considerable reason, both in the form of legal precedent and expert opinion, to believe that waterboarding meets the level of pain and suffering necessary to be considered torture. But Bybee mentioned neither of these things in his memo. Even the well-known case of America's conviction of Japanese officials for torture - based on the specific charge of waterboarding - receives no mention whatsoever. The legal opinion offered is so poorly argued that it is hard to believe Bybee could have written it for any other purpose than to provide legal justification for acts that he knew to be illegal (or, at the very least, highly suspect). The same must be said of the the other two important documents from August 1, 2002: the memo from Yoo et. al, discussed above, and another memo written from John Yoo to then-White House Counsel Alberto Gonzales, outlining the president's powers with regard to interrogation techniques. That memo, written by Yoo and approved by Bybee, has been widely scorned for asserting, among other things, that anti-torture laws "may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers." Harold Koh, Dean of Yale Law School and President Obama's nominee for Legal Adviser to the Department of State, called it "perhaps the most clearly erroneous legal opinion I have ever read."
So, to sum things up: on August 1, 2002, three documents written by John Yoo, David Addington, and Jay Bybee were approved by Bybee and became the centerpiece of the Bush Administration's interrogation policies. They were:
- The "expansive view" memo by Bybee, Yoo, and Addington, "defining" what level of pain and suffering constitutes torture and would be prohibited by law;- Bybee's just-released memo referring specifically to the interrogation of Abu Zubaydah, and concluding, among other things, that waterboarding is not torture; and- The memo, written primarily by John Yoo, to Alberto Gonzales, arguing that techniques involved in U.S. interrogations do not meet the criteria of torture - and, more broadly, that laws prohibiting torture may violate the president's constitutionally-ensured powers to make war against America's enemies.
These memos have been roundly criticized for their unprecented interpretation of executive power and their shockingly poor legal reasoning. They ignored American legal precedent, circumvented international laws and norms, and justified the use of techniques that have been called "torture" by the current President of the United States, the current United States Attorney General, the Minority Leader of the United States House of Representatives, the Bush administration's convening authority on the Guantanamo commissions, the International Red Cross, and the King of Jordan, among others. So, what are their fates?
John Yoo is professor of law at the University of California, Berkeley.
Jay Bybee holds a lifetime appointment as a federal judge on the 9th Circuit Court of Appeals.
David Addington is apparently still looking for work.
Bybee and Yoo are currently being investigated by the Office of Professional Responsibility at the Department of Justice, but no criminal charges are pending. Why not? Peggy Noonan, for one, thinks it's just time to move on:
This attitude is disturbingly widespread in Washington, and I hope it isn't shared by President Obama, who remarked, somewhat obliquely, that he prefers to look forward rather than backward. I was relieved when he discussed the possibility of a bipartisan Truth Commission, because it's the most likely way we'll make any progress on these issues. But why does the idea of prosecutions make everyone so nervous?
During Eric Holder's confirmation hearings, he was asked about these memos and noted that the "criminalization of policy differences" was a worrying trend in American politics. It dates back to Watergate, but it continues on through Iran-Contra, Whitewater/Monica Lewinsky, and now to torture. There was - and remains, I think - an attitude that Democrats were happy to use investigations to achieve what they had failed to do in elections: beat Richard Nixon. Of course that's a ridiculous notion, because Nixon broke the law and deserved everything he got, but it nonetheless was the opinion of many conservatives at the time.
Imagine, then, the reaction of the right during Iran-Contra. Again, the Democrats failed to beat a Republican president in his re-election bid, so they decided to use Congressional investigations to derail his second term. Let me repeat: this is a ridiculous attitude; Reagan administration officials broke the law and should have been held accountable. But in the highly-charged partisan politics of Washington, the use of Congressional investigations is seen by some as just another weapon in the political arsenal. The attitude of Oliver North at the Iran-Contra hearings is similar to the right's modern approach to critics of torture: "Well, weak, glasses-wearing, Ivy-League, East-Coast, New-York-Times-Reading liberal wusses might not like it, but someone has to be tough and do what's necessary for America, even if it means bending the rules a little bit here and there. Anyone with a brain and a set of a cajones understands that."
By the time we got to the 1990s, then, Republicans had discovered what they thought was a political weapon (even if it what they saw as political theater had been the legitimate investigation of crimes). Eager to wield this new weapon, they spent an entire presidency and millions of dollars investigating President Clinton. Whitewater never turned up any illegal actions, but it did lead to Monica Lewinsky and President Clinton's eventual perjury. That was good enough for the Republicans, but they had been overzealous: because President Clinton's actions were so minor compared to the crimes of previous presidents (nothing on a Watergate or Iran-Contra scale), and because the Republicans had so aggressively attacked him for something that most people didn't consider to be that big of a deal in the grand scheme of things, Clinton's approval ratings went up and the Republicans' numbers tanked. Clinton left office with an approval rating in the mid 60s - people thought he was a good president, even though they looked down on his character.
This trend did not continue into the next two-term presidency because the Democrats didn't control Congress until 2006. By then, President Bush was a lame duck, and despite hearings, nothing on the scale of the previous investigations took place. It just wasn't worth it - Congressional Democrats seemed pretty happy to let the president's second term fizzle out. If investigations into possible criminality began now, wouldn't it smack of political retribution?
Probably. There's a significant principle at stake here: presidents should be given the benefit of the doubt, particularly in uncertain and dangerous times, to do what they think is best for the American people. It would be very dangerous to undermine that principle, and the effecton subsequent administrations could be severe.
But there is a more important principle that will suffer if we don't act: the principle that no one is above the law. It is becoming increasingly obvious that the Bush administration did not act in good faith with the letter or spirit of the law; that its justifications for illegal acts were simply cover for premeditated decisions to torture, not genuine attempts to determine what was allowed and prohibited; that it engaged in significant, widespread violations of federal and international law; and that these crimes were approved - in fact, they were directed - by officials at the highest levels of the executive branch, including the President, Vice President, and Secretaries of State and Defense. Some of these officials may not have known that what they were ordering was illegal; if they trusted the advice of their lawyers, they would have been assured that it was not. But their lawyers - Bybee, Yoo, and Addington, and perhaps others - were almost certainly attempting to circumvent the law. It would be awkward, embarrassing, and painful to hold them fully accountable for their actions. But ignoring or excusing their actions would do vastly more harm to our country.
If we are not a nation of laws, what are we?