Lies the government told you (37 page)

The Bush administration, as you may have noticed throughout its stint at the White House, did not respond well to criticism, or simply opposing points of view. White House Counsel (and later Attorney General) Alberto Gonzales, in late January 2002, wrote a memo to President Bush, noting Secretary of State Colin Powell’s opposition to the Yoo memo.
³⁹
Gonzales then made his case for torture, stating that “[t]he nature of the new war places a high premium on other factors, such as the ability to quickly obtain [
sic
] information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.”
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According to Gonzales, “this new paradigm
renders obsolete Geneva’s strict limitations on questioning
of enemy prisoners and
renders quaint
some of its provisions”
⁴¹
(emphases added).

Furthermore, Attorney General Gonzales believed that stepping outside of the Geneva Conventions would preserve President Bush’s “flexibility” during the war.
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That is, it would protect administration personnel from prosecution under the 1996 War Crimes Act, which defines a war crime as “any grave breach” of the Geneva Conventions.
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Gonzales’s argument is quite disturbing. He advocated breaking the law by suggesting that the law should not apply. And he was President Bush’s lawyer, and he became the nation’s chief law enforcement officer.

On February 7th 2002, the Bush administration claimed to have conceded to Powell’s skepticism by stating that the United States would apply the Geneva Conventions to the Afghan war.
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However, Taliban and al-Qaeda detainees would still not be protected by the Geneva Conventions.
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This essentially opened the door for harsh treatment and permitted President Bush to use any method he liked to achieve any goal he wished.

Later, on August 1st 2002, President Bush got more help from Justice Department attorneys, Jay Bybee and again John Yoo. Bybee, like Yoo, was a senior official at the OLC. On August 1st, the OLC issued two memos, which Georgetown Law Professor David Cole later called the “original sin.”
⁴⁶
The memos were written in response
to Gonzales’s request for an opinion on whether the United States’ interrogation policies were banned by federal law. Gonzales knew the answer that Bush wanted, but he needed a second opinion.

In the initial August 1st memo, Bybee and Yoo decided to circumvent the law by defining torture in an extremely narrow way. According to the memo, torture consists of “severe physical or mental pain or suffering” that produces a near occasion of death.
⁴⁷
It then concluded that in order for pain to be “severe,” it must be “equivalent in intensity to the pain accompanying organ failure, impairment of bodily function, or even death.”
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The memo stated that “prolonged mental harm” is harm that must last for “months or years.”
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The memo also declared that the president had the power to authorize torture, regardless of the federal statute criminalizing it
.
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Additionally, the memo advised that interrogators could escape liability for engaging in torture by utilizing expanded versions of the doctrines of “self-defense” and “necessity.”
⁵¹

The second August 1st 2002 memo, which was not released to the public until April 2009, approved all of the CIA’s proposed “interrogation” techniques, including: attention grasp, walling, facial hold, facial slap, cramped confinement, wall standing, stress positions, sleep deprivation, insects placed in a confinement box, and water-boarding.
⁵²
The OLC claimed that none of the techniques were severe enough to constitute its own tailor-made definition of torture.
⁵³

The OLC concluded, for example, that waterboarding “inflicts no pain or actual harm whatsoever.”
⁵⁴
Yet, the Justice Department did not do its own independent research to analyze the various proposed tactics. Rather, it simply accepted the CIA’s positions on these methods.
⁵⁵
The memo states that “[the CIA has] informed us that . . . [waterboarding] . . . does not inflict actual physical harm.”
⁵⁶
So, basically, the OLC under Jay Bybee took the advice of those who asked for
its
advice on interrogation tactics to determine the lawfulness of those tactics.
Does this make any sense
? Bush, believe it or not, later appointed Bybee to the Ninth Circuit Court of Appeals.

Furthermore, on December 2nd 2002, Secretary of Defense Donald Rumsfeld signed off on a memo, known as the “Haynes memo,” which
blatantly
condoned torture.
⁵⁷
That memo was drafted by William J. Haynes II, the General Counsel at the Defense Department, and was addressed to Rumsfeld.
⁵⁸
Haynes sought Rumsfeld’s approval of various new interrogation techniques, including isolation for up to thirty days, deprivation of light and auditory stimuli, and waterboarding, to name a few.
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Rumsfeld approved, but questioned a technique in which interrogators forced detainees to stand for a maximum of four hours.
⁶⁰
At the bottom of the document, Rumsfeld wrote, “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”
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The Bush administration, therefore, had managed to sidestep the law, and through the Haynes memo, had more recipes for torture. The horrific incidents at Abu Ghraib, a prison located in Baghdad, Iraq, seem less and less like isolated incidents, despite no hard publicly known proof that they were ordered. During the summer of 2004, photos were released of American soldiers brutalizing and humiliating Iraqi prisoners. These soldiers forced Iraqis to masturbate and sexually assaulted them with chemical light sticks. American military personnel were also captured laughing over dead Iraqis whose bodies were disfigured. Another picture that surfaced was of a hooded Iraqi man standing naked on a box, with his arms outspread, and wires dangling from his fingers, nose, and penis. This is an arcane method of interrogation called “the Vietnam.” Many said that the soldiers had to have been taught how to do this, which could lead one to believe that they were ordered to do it. According to Senator Lindsey Graham (R-SC), “The photos clearly demonstrate to me the level of prisoner abuse and mistreatment went far beyond what I expected . . . It seems to have been planned.” Planned by whom, Senator?

We know for sure that the Bush administration planned, condoned, and continues to defend a procedure known as waterboarding, and used it against prisoners Khalid Sheikh Mohammed, Abu Zubayda, and Abd al-Rahim al-Nashiri on multiple occasions. Waterboarding is a “stress-and-duress” procedure consisting of immobilizing a person on his back, with his head inclined downward. The “interrogator” then pours water over the face and into the breathing passages. Through forced suffocation, and inhalation of water, the subject experiences the process of drowning. Waterboarding does not always cause lasting physical damage, but it causes extreme pain, damage to the lungs, brain damage caused by oxygen deprivation, physical injuries due to struggling against the restraints, and even death.

Waterboarding nevertheless constitutes torture, even under now-Judge Jay Bybee’s narrow definition of the term. As stated above, under the United States Code, torture is defined as “an act . . . specifically intended to inflict severe physical or mental pain or suffering. . . .” The Code defines severe mental pain or suffering as “the prolonged mental harm caused by or resulting from” a predicate act. One qualifying predicate act is “the threat of imminent death.” Bybee wrote in the memo that “waterboarding constitutes a threat of imminent death,” but found no evidence that the procedure caused prolonged mental harm. Thus even by his own perverse, twisted logic, now life-tenured federal Judge Bybee conceded that waterboarding is torture because it always brings the victim to a near occasion of death.

Allen Keller, M.D., however, found evidence of prolonged mental harm.
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Dr. Keller, an Associate Professor of Medicine at the New York University School of Medicine, and the Director of the Bellevue/NYU Program for Survivors of Torture, testified before the Senate Select Committee on Intelligence on September 25th 2007.
⁶³
He stated, quite clearly, that waterboarding causes prolonged mental harm.
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According to Dr. Keller, “[l]ong term effects include panic attacks, depression and [post traumatic stress disorder].”
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Dr. Keller, who treats torture victims at Bellevue Hospital in New York City, described one patient who “would panic and gasp for breath whenever it rained, even years after his abuse.”
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Another patient panics every time he showers, and yet another victim “panics every time he becomes the least bit short of breath, even during exercise.”
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It is clear, then, that waterboarding does constitute torture, and the Bush administration broke the law.

President Bush, Vice President Cheney, and their colleagues don’t care, though. The law is a mere suggestion to these people. Cheney, in a recent speech at the American Enterprise Institute on May 21st 2009, stated that he would not have changed any of the practices the Bush administration implemented.
⁶⁸

The Justice Department’s actions in response to the leak of the initial August 2002 memo showed this continued objection to the rule of law.
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When the first August 2002 memo became public in 2004, the Justice Department issued a replacement memo on December 30th 2004, which essentially overruled the August 2002 memo.
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Nevertheless, the Justice Department could not keep from breaking the law. The OLC issued three secret memos in May 2005, signed by the head of the OLC, Steven Bradbury, which declared that none of the CIA techniques amounted to torture.
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The OLC based its assessment on two facts that are irrelevant to the lawfulness of the interrogation techniques.
⁷²

One fact was that American soldiers in the military’s counter-terrorism training program had not suffered severe physical pain or prolonged mental harm when the techniques were performed on them.
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This information has nothing to do with the techniques’ lawfulness because American soldiers are not Guantánamo Bay detainees. Our
soldiers entered this program voluntarily, the tactics used against them have clearly defined limits, and the soldiers can utter a code word whenever they want to stop the ordeal.
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Prisoners do not have these luxuries.

The other fact on which Bradbury relied was that CIA-employed physicians would be present during interrogations of prisoners to monitor them.
⁷⁵
How can physicians assess the severity of pain being inflicted? How can they know when to stop the process
?
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Did they ever stop it? What kind of a physician would facilitate the administration of pain? Don’t physicians promise, “First do no harm”?

The third May 2005 memo, the most disturbing of them all, went even further, stating that the CIA’s interrogation techniques did not even amount to “cruel, inhuman, or degrading treatment.”
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Why did the OLC write this memo? The Bush administration knew that Congress would soon vote on President Bush’s objections to the Detainee Treatment Act, which prohibited “cruel, inhuman, or degrading treatment” of any person in U.S. custody.
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Therefore, the Justice Department, in order to continue to permit the Bush administration to use cruel, inhuman, and degrading treatment, was forced to conclude that the enhanced interrogation techniques that Congress thought it was outlawing were neither cruel, nor inhuman, nor degrading. The OLC rationalized its claim, stating that in order for techniques to be considered cruel, inhuman, or degrading, they must “shock the conscience,” and the CIA’s techniques did not shock the conscience.
⁷⁹
Whose conscience
?

Unfortunately, in its memo the OLC conveniently disregarded the United States Supreme Court case of
Chavez v. Martinez
(2003).
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In that case, the Supreme Court held that any intentional infliction of pain in the course of interrogation shocks the conscience, even where the statements gathered are not used to prosecute the subject.
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So, it turns out that intentionally inflicting pain is illegal. I guess our Justice Department, employing some of the most brilliant attorneys in the country, mistakenly skipped over the
Chavez
case, or, it was under pressure to disregard it. Of course, one must possess a conscience in order for it to be shocked, and many in the Bush administration gave all indications of lacking any semblance of a conscience.

The latest public memo from the OLC on the CIA interrogation tactics was the one dated July 2007.
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This memo contains some remarkable language, considering the time at which it was written. Before the memo was written, the Supreme Court ruled that Common Article 3 of the Geneva Conventions covered al-Qaeda detainees, even though the Bush administration argued that they were not covered.
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The OLC claimed that al-Qaeda detainees were different, and that the CIA could engage in degrading treatment that did not constitute an “outrage upon personal dignity,”
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a class of treatment prohibited by Common Article 3. Furthermore, the memo stated that even if the CIA program violated Common Article 3, the president could simply declare that it does not apply.
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The Office of Legal Counsel operates as the “constitutional conscience” of the Justice Department.
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Its job is to exercise independent, objective judgment to make sure the president and the executive branch are working within the law.
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Its job is not to write one-sided memos ignoring laws and treaties unfavorable to the president’s cause. The OLC is important not only because it works for the federal government, and Americans expect that the government will respect the rule of law (
isn’t there a mountain of evidence that militates against such an expectation
?), but also the OLC’s role is vital because its work is virtually unchecked.
⁸⁸
OLC lawyers are not private attorneys who put forth their clients’ best argument in an adversarial setting.
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No judge or jury reviews the OLC’s opinions. Rather, the OLC is supposed to work as a check on the executive branch, representing a line of defense against unlawful executive activity.