Cheating Justice (15 page)

At 1600 Pennsylvania Avenue, Vice President Cheney, National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, CIA director George Tenet, and Attorney General John Ashcroft would go over the best aggressive interrogation techniques for specific prisoners. Ashcroft, no bleeding-heart liberal, is said to have objected—not because he disagreed with the torture, but because he didn't think they needed to be involved in the nitty-gritty. “Why are we talking about this in the White House? History will not judge this kindly,” he said to his colleagues, according to high-level sources who later spoke to ABC News.
34

On August 1, 2002, torture had lawyers working for it. Two memos—they came to be known as the “torture memos”—were issued carrying the signature of Jay Bybee, assistant attorney general in the Justice Department's Office of Legal Counsel; they were written by a deputy: John Yoo, the same lawyer who justified illegal wiretapping. These documents became the second critical action of the top-down authorization, approval, and institutionalization of torture and cruel treatment. They were aptly described in a subheading of the 2008 report of the Senate Armed Services Committee: “Department of Justice Redefines Torture.”

By way of background, the Office of Legal Counsel (OLC) has a unique role in the Justice Department—it is to give independent legal advice to the president and executive branch. “Principles to Guide the Office of Legal Counsel,” prepared in 2004 by nineteen former OLC attorneys, explained that OLC lawyers “should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies. The advocacy model of lawyer, in which lawyers craft merely plausible legal arguments to support their client's desired actions, inadequately promotes the President's constitutional obligation to ensure the legality of executive action.”
35
In the words of Jack Goldsmith, OLC head in 2003 and 2004, the office has “the most momentous and dangerous powers in the government: the power to dispense get-out-of-jail free cards.”
36

The first of the two torture memos, fifty pages in length and directed
to Alberto Gonzales, counsel to the president, was headed: “Re: Standards of Conduct for Interrogation under 18 USC §§ 2340–2340A.”
37
Kept secret until June 2004 when it was leaked to the press, it expanded presidential authority, sought to override the anti-torture law in the United States, and attempted to change the long-established meaning of torture. It was accompanied by a six-page letter from Yoo, reminding Gonzales that the president had previously eliminated Geneva Convention protections for al Qaeda and the Taliban.
38

The second torture memo, eighteen pages in length, was addressed to the acting general counsel of the CIA, John Rizzo. It finally saw the light of day in a redacted form when it was released to the public on April 16, 2009. This memo laid out exceptionally detailed descriptions of ten specific enhanced interrogation techniques that were approved for CIA use on Abu Zubaydah, a prescription that became the pattern for other torture sessions. It put the first torture memo into practical application.
39

Yoo churned out the memos after meeting with Gonzales and Addington, counsel to the vice president. When Yoo's colleague Patrick Philbin, deputy assistant attorney general, raised a question about one section of the memo, Yoo simply responded that “they” wanted it—“they” implying White House insiders.
40
When the Office of Professional Responsibility tried to review the decision-making process as part of an investigation into the conduct of Yoo and Bybee, many of Yoo's e-mails from that time period were simply missing. For the most part, the torture memos skirted the normal processes of review and skipped the State Department altogether.
41

As it happens, the memos were filled with legal fantasia. The torture memos aimed to redefine torture under the anti-torture law, a major legal obstacle to the use of enhanced interrogation techniques. The goals were clear: to prevent any prosecutions along the chain of command under the anti-torture law and to permit the CIA to employ the interrogation techniques adapted for the SERE program from the North Korean regime.

Daniel Levin, a later head of the Office of Legal Counsel, was succinct in his evaluation: “[T]his is insane, who wrote this?” he said, according to the report of the Office of Professional Responsibility.
42
Or, as politely stated in 2004 by the inspector general of the CIA, the approach in the memos “diverges sharply from previous Agency policy and rules that govern interrogations by U.S. military and law enforcement officers.”
43

The anti-torture law makes it a crime for anyone acting in a government
capacity to commit torture or to conspire to commit torture outside the United States. The torture memos actually came about because CIA officers wanted legal assurances that they wouldn't be prosecuted for the use of the SERE techniques. Abu Zubaydah was already being subjected to several SERE-type techniques when the memos were issued, according to the inspector general of the CIA.

Michael Chertoff, then head of the criminal division of the Justice Department, refused to give any form of advance “declination” to prosecute, the Office of Professional Responsibility investigators found. That's not all. The OPR investigators learned that the FBI said that it would not conduct or participate in any interrogations employing the aggressive techniques, no matter what the Office of Legal Counsel said, and it refused to participate in further discussions.
44

Yoo was “under pretty significant pressure to come up with an answer that would justify [the program],” John B. Bellinger III, legal advisor to the National Security Council, told investigators from the Office of Professional Responsibility.

The torture memos usedthree tactics to blunt the anti-torture law: (1) they narrowed the definition of torture so almost nothing qualified as torture; (2) they asserted that anyone creating pain for the purpose of seeking information did not have the specific intent to commit an act of torture (since the objective was getting the information, not inflicting pain); and (3) they created a series of defenses for the president and others if allegations of torture were to arise.

The first memo, dated August 1, 2002, chopped apart the anti-torture law and attempted to assign new, unheard-of (if inventive) meanings to its provisions. Yoo took a scalpel to the definition of torture, narrowing it so greatly that most acts fell
outside
the definition of torture. Only a thin slice of activity was left that could be considered “torture.” He did this by taking the definition of torture that existed in the law—“specifically intended to inflict severe physical or mental pain or suffering”—and linguistically savaging every phrase and word.

Particular energy was expended on whipping up an unusual definition of “severe pain”—the basis of torture. Severe pain, Yoo wrote, must be “the equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

At first glance, the definition seems to suggest a very high degree of
pain; on inspection, it's meaningless, especially as a tool of proof. For example, no one knows what pain accompanies death—it is, after all, the land “from whose bourne no traveler returns,” as Shakespeare once said. And so, what could possibly be its equivalent? Even Yoo, when asked by the Office of Professional Responsibility several years later about the pain that death entails, said: “Well I think, I assume that's very painful, but I don't know.” Yoo's comment is evidence that his definition was not meant to be intellectually serious but was merely concocted to prevent effective application of the law.

The terms “organ failure” and “impairment of bodily function” do not have standard pain indexes, either—these are vague and unmeasurable descriptions. How can a person possibly prove that being shackled to the ceiling, naked, in an icy environment and deprived of sleep for days on end produces the same pain as the failure of an organ? Yoo pretended to give the words “organ failure, impairment of a bodily function, or even death” some additional legal heft by claiming that he was drawing on a federal statute that provides emergency health benefits. But the emergency health benefits statute that he uses doesn't define severe pain, nor does it even use the words “organ failure, impairment of bodily function, or death.” The citation of the health benefits law was another ruse, designed to suggest that there was a precedent or analogy in federal law, when there was none.

This tactic is the template by which Yoo attempted to manipulate the rest of the anti-torture law. Some examples:

Navy General Counsel Alberto J. Mora later met with John Yoo about a follow-up torture memo that Yoo was drafting. Mora recalled the conversation in the 2009 documentary film,
Torturing Democracy:
“As he was talking, I was becoming more concerned and more alarmed, and ultimately I asked him the question, ‘Well, John, does this mean the President has the authority to order torture?' And he said, ‘Yes.'” Mora was stunned.
45

The second Yoo/Bybee memo, dated August 1, 2002 (which is frequently called the “Classified Bybee Memo”), laid out the SERE-type techniques of interrogation proposed for use on Abu Zubaydah. Not surprisingly, Yoo found that not one of them constituted torture. This document was also filled with other disconcerting entries. For example, it justified waterboarding but took no account of its history and the fact that the United States had treated it as torture in the past. No mention or acknowledgment was made of the federal prosecution of Texas sheriff James Parker in 1983 and his deputies for using “water torture” against prisoners, or of the prosecution of a Japanese officer, Yukio Asano, in 1947 for waterboarding a U.S. citizen, or the court martial of a U.S. soldier in Vietnam for the waterboarding of a captive in 1968.
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The memo, addressed to the CIA, approved a series of brutal techniques. The language in the memo read like this: “In this phase, you would like to employ ten techniques that you believe will dislocate his expectations regarding the treatment he believes he will receive.” The techniques were then listed: attention grasp, walling, facial hold, facial slap (insult slap), cramped confinement, wall standing (in which the detainee's fingertips would have to support his full body weight as he leaned into a wall), stress positions, sleep deprivation, “insects placed in a confinement box,” and “the waterboard.”

Yoo fails to probe any of these techniques in a meaningful way. On the subject of sleep deprivation, approved as an enhanced interrogation technique, Yoo did not consider the methods by which detainees would be kept awake. One CIA/SERE idea of keeping detainees awake involved shackling the individual in a standing position with his arms over his head and naked,
except for a diaper. Nor did Yoo discuss the extent to which any of these techniques, when used in combination with one another, could cause severe physical pain. Considered singly, each is found to pass the muster of John Yoo and Jay Bybee. But what happens when they are used together—sleep deprivation, a crouching box, and walling? Alone, the techniques are appalling; combined, the brew is devastating.

Years later, in April 2005, the failure to consider the effects of
combining
these techniques created new agitation inside the Justice Department when James Comey, deputy attorney general, objected vociferously to signing off on “combined techniques,” according to a 2009 story on
Truthout
, which also reprinted Comey's e-mails (later archived by the
New York Times
). Referring to the authorization of “combined techniques,” Comey wrote, “I could not agree to this because it was wrong.”
47

The thrust of the two Bybee/Yoo torture memos comes to this: over a thirty-day period, a chilled nude man in diapers who is not permitted to use the toilet, who is being fed on semi-starvation rations, who is being kept awake for eleven days at a time by being shackled into a standing position, is taken out of the shackles for incessant interrogation sessions where he is repeatedly smashed into a wall, hosed with frigid water, slapped, and put into other shackled standing, sitting, crouching or confined “stress” positions. And then he is waterboarded. This, according to those who approved it, does not cause severe physical pain or suffering, or mental pain or suffering.

The conclusion flies in the face of human experience, a problem compounded by the failure to consider the substantial medical literature on the impact of these various torture techniques. The memos were not an intellectually honest effort.

The torture memos formed the core justification for other actions and decisions that sanctioned, authorized, and institutionalized torture and cruel treatment. The memos, Jack Goldsmith wrote in his book
The Terror Presidency
, “could be interpreted as if they were designed to confer immunity for bad acts.”