The Torture Memos


The Department of Justice yesterday declassified and released the infamous “torture memos” written by John Yoo, which gave the legal green light for the Bush administration to violate the Geneva Conventions, the Convention Against Torture, and the U.S. Constitution in the interrogation of detainees taken into U.S. custody after 9/11. Here they are: Part 1 and Part 2. Marty Lederman analyzes the memos in painstaking detail here, here, here, and here.

Coincidentally, Vanity Fair has an excerpt from Philippe Sands’ upcoming book, The Torture Team, about the group of senior Bush administration officials and attorneys who started out with the intention to commit criminal acts, and then put together the legal arguments that (they thought) would protect them from prosecution.

And make no mistake, they knew they were authorizing crimes:

… the torture lawyers fully appreciated from the outset that torture was a criminal act. Most of the legal memoranda they crafted, including the March 2003 Yoo memorandum released today, consist largely of precisely the sorts of arguments that criminal defense attorneys make–they weave and bob through the law finding exceptions and qualifications to the application of the criminal law. But there are some major differences: these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.

Sands spoke with a psychiatrist who works with trauma victims about the interrogation practices used on detainees at Guantanamo:

“In terms of their effects,” she said, “I suspect that the individual techniques are less important than the fact that they were used over an extended period of time, and that several appear to be used together: in other words, the cumulative effect.” Detainee 063 was subjected to systematic sleep deprivation. He was shackled and cuffed; at times, head restraints were used. He was compelled to listen to threats to his family. The interrogation leveraged his sensitivities as a Muslim: he was shown pictures of scantily clad models, was touched by a female interrogator, was made to stand naked, and was forcibly shaved. He was denied the right to pray. A psychiatrist who witnessed the interrogation of Detainee 063 reported the use of dogs, intended to intimidate “by getting the dogs close to him and then having the dogs bark or act aggressively on command.” The temperature was changed, and 063 was subjected to extreme cold. Intravenous tubes were forced into his body, to provide nourishment when he would not eat or drink.

We went through the marked-up document slowly, pausing at each blue mark. Detainee 063’s reactions were recorded with regularity. I’ll string some of them together to convey the impression:

Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Began crying hard spontaneously. Crying and praying. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Dizzy. Forgetting things. Angry. Upset. Yelled for Allah.

The blue highlights went on and on.

Urinated on himself. Began to cry. Asked God for forgiveness. Cried. Cried. Became violent. Began to cry. Broke down and cried. Began to pray and openly cried. Cried out to Allah several times. Trembled uncontrollably.

Glenn Greenwald points out that, although the legal reasoning the Yoo memos used to justify torture has been rejected, the theories of unlimited executive power that inform that reasoning have not been rejected:

… While Yoo’s specific Torture Memos were ultimately rescinded by subsequent DOJ officials — primarily Jack Goldsmith — the underlying theories of omnipotent executive power remain largely in place. The administration continues to embrace precisely these same theories to assert that it has the power to violate a whole array of laws — from our nation’s spying and surveillance statutes to countless Congressional oversight requirements — and to detain even U.S. citizens, detained on American soil, as “enemy combatants.” So for all of the dramatic outrage that this Yoo memo will generate for a day or so, the general framework on which it rests, despite being weakened by the Supreme Court in Hamdan, is the one under which we continue to live, without much protest or objection.

Rick Moran is one of the very few on the right who is at all troubled at the Bush administration’s misuse and abuse of constitutional law to justify and authorize policies that are both illegal and a betrayal of everything that distinguishes Americans from terrorists:

I don’t expect too many of you to agree with me about the shame I believe that John Yoo and the Bush Administration has brought upon America as a result of their attempt to legally justify the torture of prisoners. From what I’ve been reading for years on other conservative sites, I know that many of you believe that any treatment we hand out to terrorists is too good for them, that they deserve to suffer and besides we need the information that only torture will elicit. Beyond that, there is a troubling rationale used by many conservatives that posits the notion of reciprocity; that because the terrorists treat prisoners in a beastly manner, it is perfectly alright for us to do the same to them.

It vexes me that conservatives believe such nonsense – believe it and use it as a justification for the violation of international and domestic law not to mention destroying our long standing and proud tradition of simply being better than that. Why this aspect of American exceptionalism escapes my friends on the right who don’t hesitate to use the argument that we are a different nation than all others when it comes to rightly boasting about our vast freedoms and brilliantly constructed Constitution is beyond me.

But for me and many others on the right, the issue of torture defines America in a way that does not weigh comfortably on our consciences or on our self image as citizens of this country. I am saddened beyond words to be associated with a country that willingly gives up its traditions and adherence to the rule of law for the easy way, the short cut around the law, while giving in to the basest instincts we posses because we are afraid.

I do not wish terrorists to be tortured. I wish them dead. But if they must surrender themselves to our custody or if we find it to our tactical advantage to hold them, then we have no alternative but to treat them as Americans treat prisoners not as the terrorists themselves treat their captives. This is self evident and it is shocking at times to be reviled as a “terrorist lover” just because I wish that our tradition of human decency and adhering to the rule of law be upheld.

The specifics of what is or what is not torture matter not. Inflicting pain is not something you can put on a scale and judge whether an interrogation technique crosses some invisible line between just being a little painful and outright agony. Mental and physical pain inflicted on purpose is a crime according to international law and our domestic statutes. It is pure sophistry to argue otherwise.

Let’s be clear on this; John Yoo’s memo does a tap dance around the Constitution, the UN treaty banning torture, and domestic laws prohibiting our public officials from engaging in acts that cause bodily harm to another person.

I am not a lawyer. But I can read. When a document is written in order to justify what otherwise would be illegal acts during peacetime (something that is clearly on Yoo’s mind throughout much of his memo), one would hope that something besides expanding the power of the executive to grant immunity to those who carry out the erstwhile illegalities would be used as a legal framework. Yoo makes little attempt, from my reading, to do so.

But as I said, Rick is an anomaly in this regard. Most commentators on the right are more like Michael Goldfarb at the Weekly Standard:

I haven’t really been following this issue, mostly because I’m pretty sure that whatever the government is doing to these terrorists wouldn’t “shock my conscience.” Like my man Scalia says, sometimes you’re going to have to take these terrorists and “smack them in the face.” But, some folks are more easily shocked than I am, and they are in full moral outrage mode this morning with the release of a 2003 memo by John Yoo (now a professor at Berkeley!) approving “harsh interrogation techniques.” Oh, the humanity!
Unfortunately, in a sad twist of fate, Andrew Sullivan has taken the week off, and so there will be no calls for a new Nuremberg trial featuring the prosecution of George Bush, Dick Cheney, Donald Rumsfeld, and everyone else Andrew doesn’t agree with. But if you need your fix of self-righteous lefty demagoguery, Glenn Greenwald is a pretty good substitute with his post on “John Yoo’s War Crimes.”

Goldfarb titles this hymn of praise to evil, “Torture Yoo Can Believe In.”

Via Memeorandum, where you will find more commentary.

Emily Bazelon at Slate
Kevin Drum, Washington Monthly
Christy Hardin Smith, Firedoglake
John Cole, Balloon Juice (the comments especially)
American Constitution Society Blog
Paul Kiel, TPMMuckraker (Feith shares his expertise on assholes)
Larisa Alexandrovna, At-Largely (contact info for Yoo and the entire administrative staff at UC Berkeley School of Law)
Dan Eggen and Josh White, The Washington Post

And more.

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