by Damozel | The ACLU has released some crucial memoranda which reveal the tortuous path by which the Bush Administration's Department of 'Justice' taught the CIA to rationalize its way to a distinction between 'enhanced interrogation' and plain old-fashioned 'torture.' The Justice Department told the CIA that agents would be safe from prosecution if they they believed 'in good faith' that flies don't have feelings so it doesn't matter if they pull the wings off them, according to the AP. I may have paraphrased a bit. I know they don't like being quoted.
Put it another way, you could say that the standard articulated in the memos works something like this: 'Use only those enhanced interrogation techniques that wouldn't shock the conscience of a sociopath.' At that, it's hard to believe that they drew the line at waterboarding. Evidently the CIA doesn't have as many agents who think like sociopaths as television and films would lead you to believe. One effect of all this information is to make me feel a little better about them. They might have done so much more.
The implications are disturbing, if unsurprising (based on what we
already know). I'm not sure that there's much that could shock me after Bybee's 'organ failure' memo (later rescinded by the DoJ). That was the low-water mark for me. Though this isn't cheering.
Spencer Ackerman writes:
It's a landmark day for torture-disclosure. Today, the ACLU obtained and released a redacted version of one of the most important building blocks in the Bush administration's architecture of torture -- the very, very, closely-held August 2002 memo, known as "Yoo-Bybee II," from the Justice Dept.'s Office of Legal Counsel that authorized the CIA to perform specific methods of torture when interrogating Al Qaeda detainees....[I]t reads a lot like legal guidance on how CIA interrogators can break anti-torture laws and get away with it.. (emphasis added)
The bar, according to the then-DoJ, is low indeed.
As long as CIA agents could convince themselves they were not deliberately inflicting severe pain or suffering on detainees, they were free to do virtually anything in their questioning of suspected terrorists, including waterboarding. Furthermore, the agents' belief they weren't in fact torturing their captives didn't even need to be "reasonable." (Nick Juliano, The Raw Story)
Of course, a lot of the picture has been, shall we say, selectively obliterated. The documents were heavily redacted, to the extent that 10 pages of one 18-page August 2002 memorandum by then Assistant Attorney General Jay Bybee were blacked out. (Nick Juliano, The Raw Story)
Anyway, here's how then Assistant Attorney General Jay Bybee (now federal appellate court judge Bybee) explained how to tell if an action is, or is not, torture.
Bybee outlined the definition of torture in Section 2340A of the United States code, focusing in part on its caveat that an act be "specifically intended to inflict severe physical or mental pain or suffering." Elaborating on his definition of the "specific intent" provision, Bybee narrows the definition to the point where it become functionally meaningless.
All that is required to avoid prosecution is a CIA agent's "good faith belief" that his actions will not cause torturous pain and suffering. Such a belief "need not be reasonable," Bybee writes. (Nick Juliano, The Raw Story)
In other words, if the agent believes in good faith---however unreasonably---that the action won't cause pain and suffering or prolonged mental harm, the action isn't torture. That's the same standard very small children apply when they step on the puppy's tail to hear it yelp.
My mom used to say, 'How would you like it if I stepped on your tail to make you yelp?'
'What? Whatever. I don't have a tail' and whose moms couldn't think of a response. My mom would have pinched their arms to teach them about good faith and reasonableness and said, 'Then how do you like that?'
Look:
Though heavily redacted, the document shows that the Justice Department authorized alternative interrogation methods after concluding that "those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering" or "to cause severe mental pain or suffering."
The memo explains: "Prolonged mental harm is substantial mental harm of sustained duration, e.g. harm lasting months or even years after the acts were inflicted upon the prisoner.".... The memo is signed by Jay Bybee, who also signed the "organ failure" memo issued to the CIA the same day, and who is now a federal appellate judge. (Memo August 1 2003)
The ACLU speculates one of the documents, a memo from George Tenet, indicates that the agency was contemplating the use of 'super-enhanced techniques' (i.e., less 'problematic' than waterboarding, if you're not sure waterboarding is torture). See AP.
I'm trying to feel good about the fact that at least the information is emerging, and that there is a push to force them to disgorge, rather than bad about the fact that people in power would actually engage in this sort of thinking.
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UPDATE: More on other memos I didn't discuss---
Another memo released Thursday advises that "the waterboard," or simulated drowning, does "not violate the Torture Statute."
It also cites a number of warnings against torture, including statements by President Bush and a then-new Supreme Court ruling "which raises possible concerns about future U.S. judicial review of the [interrogation] Program."
"These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody," said Jameel Jaffer, director of the ACLU National Security Project. (emphasis added)
Justin Gardner writes at Donklephant:
So when Bush was saying “we do not torture”, I guess what he was really saying was “we do not intend to inflict severe pain or suffering.”
How did they think they’d get away with this?
If you're having a hard time keeping track, check out Slate's interactive guide to 'Who in the Bush Administration Broke the Law and Who Could be Prosecuted?'
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