How Jay Bybee Has Approved the Prosecution of CIA Operatives for Torture

Last Thursday, Rep. John Conyers (D-Mich.), the Chair of the House
Judiciary Committee, released the
previously undisclosed testimony of Jay S. Bybee, delivered to the
Committee on May 26 as part of its investigations into advice given by
Justice Department lawyers to the Bush administration regarding the use
of torture in the "War on Terror." Bybee, now a judge in the Ninth
Circuit Court of Appeals, was the Assistant Attorney General in the
Justice Department's Office of Legal Counsel (the department that is
supposedly obliged to deliver impartial legal advice to the Executive
branch) on August 1, 2002, when two notorious memos - commonly known as
the "torture memos" - were issued, largely written by OLC
lawyer John Yoo, but ultimately signed off by Bybee.

The first memo (PDF),
which sought to redefine torture, was leaked in the wake of the Abu Ghraib scandal in 2004, and remains shocking
for its attempt to claim that the
definition in the
US anti-torture statute (an act "specifically intended to inflict
severe physical or mental pain or suffering ... upon another person within
his custody or physical control") could be redefined as the infliction
of physical pain "equivalent in intensity to the pain accompanying
serious physical injury, such as organ failure, impairment of bodily
function, or even death," or the infliction of mental pain which
"result[s] in significant psychological harm of significant duration
e.g. lasting for months or even years."

The memo was also noteworthy for its attempt to nullify the concept
of "specific intent" by providing a defense for anyone whose actions
were undertaken "in good faith," and, in addition, for its endorsement
of unfettered executive power, in the section in which Yoo (with Bybee's
backing) stated, "Even if an interrogation method arguably were to
violate Section 2340A [the federal anti-torture statute], the statute
would be unconstitutional if it impermissibly encroached on the
President's constitutional power to conduct a military campaign."

In the second memo (PDF),
Yoo and Bybee dealt specifically with requests for approval of a number
of "enhanced interrogation techniques" - some of which were clearly
torture techniques - for use on a specific "high-value detainee" in CIA
custody. That man was Abu Zubaydah (who, it turned out, was not a
high-ranking member of al-Qaeda, as initially supposed), and this was
how I described the techniques approved for use on him in an article last April, when this second memo (and
three later memos) were released:

The ten techniques - whose use is minutely micro-managed
with a chillingly cold attention to detail - include a handful of
physical tactics which, to my mind, seem mild compared to the widespread
physical violence that accompanied detention in the "War on Terror"
("attention grasp," "facial hold," and "facial slap (insult slap)"), and
a more insidious form of violence ("walling"), which involves
repeatedly hurling prisoners against a false wall. Much more disturbing
are the use of stress positions, sleep deprivation, confinement in small
boxes, waterboarding [a form of controlled drowning, long recognized as
a torture technique], and - straight out of George Orwell's 1984
- a proposal to prey on Zubaydah's fear of insects by placing an insect
into his "confinement box."

This latter technique was, apparently, never used, but the others all
were, and the memo blithely attempted to dismiss long-standing proof
that [most of these techniques] can be regarded as torture by being
satisfied with time limits imposed on imprisonment in the "confinement
boxes," by declaring that the use of painful stress positions (on which
no time limit seems to have been imposed) was only undertaken "to induce
muscle fatigue," and by claiming that the well-chronicled mental
collapse that can result from sleep deprivation would, instead, only
involve mild discomfort that "will generally remit after one or two
nights of uninterrupted sleep," even though, as Yoo and Bybee also
noted, "You have orally informed us that you would not deprive Zubaydah
of sleep for more than eleven days at a time."

In January this year, Bybee and Yoo narrowly escaped being referred to their respective
bar councils - and possibly being struck off - after a four-year
internal Justice Department investigation into the memos, conducted by
the Office of Professional Responsibility, concluded that Bybee
"committed professional misconduct when he acted in reckless disregard
of his duty to exercise independent legal judgment and render thorough,
objective, and candid legal advice," and that Yoo "committed intentional
professional misconduct when he violated his duty to exercise
independent legal judgment and render thorough, objective, and candid
legal advice."

At the last minute, however, Bybee and Yoo were saved when Associate
Deputy Attorney General David Margolis, a career official who has worked
at the DoJ for 17 years and has a
history of shielding officials from allegations of misconduct,
downgraded the report's conclusions, asserting that Yoo and Bybee had
only shown "poor judgment."

In the 290-page transcript released by the House Judiciary Committee (PDF,
with accompanying documents here),
Bybee, over the course of a day's questioning, demonstrated three
particular responses to his role in approving the memos: shifting the
blame for any criticism onto the CIA, shifting the blame for any
criticism onto John Yoo, and defending the memos' conclusions. The
latter remains deeply troubling, as it confirms Bybee as an unrepentant
torturer, who should be prosecuted according to US law, but it is,
perhaps, his attempt to shift blame onto the CIA that is the most
revealing aspect of the transcript, as it highlights a broad range of
actions not approved by OLC, which, as a result, must be considered as
potential crimes in their own right, without the dubious protection of
the OLC's "golden shield."

Bybee attempts to shift blame onto the CIA

On the first point, Rep. Conyers stated in the press release
announcing the release of the transcript, "Bybee made clear that OLC
never approved a number of interrogation techniques that were reportedly
used on CIA detainees." In notes accompanying the release of the
transcript (PDF),
Conyers added, "These techniques include: Diapering a detainee or
forcing a detainee to defecate on himself, forcing a detainee to wear
blackout goggles, extended solitary confinement or isolation, hanging a
detainee from ceiling hooks, daily beatings, spraying cold water on a
detainee, and subjecting a detainee to high-volume music or noise."

Rep. Conyers also stated that Bybee made clear "that the OLC memos
did not permit 'substantial repetition' of even those techniques that
were approved, such as waterboarding," adding that Bybee "acknowledged
that the CIA Inspector General [in his 2004 report (PDF)]
had found that 'the waterboard was used with greater frequency and it
was used in a different manner' than OLC had approved" (notoriously, as we learned last year, Khalid Sheikh Mohammed was
waterboarded 183 times, and Abu Zubaydah was waterboarded 83 times).

There is some truth in Bybee's comments, as Marcy Wheeler noted in
her first analysis of the transcript, on Firedoglake,
in which she referred readers to Spencer Ackerman's comments on
prolonged diapering as the eleventh technique not approved by the OLC,
in an
article last August, and also pointed out that she had "written
extensively about how CIA tried to fudge approval for water dousing"
(see the articles here
and here,
for example). She also pointed out that, as well as being used on
"high-value detainees" who were eventually transferred from secret CIA
prisons to Guantanamo, water dousing also led to the
death of Gul Rahman, an Afghan held at the CIA's "Salt Pit" prison,
in November 2002.

Even so, it is not entirely encouraging that the man who signed off
on a memo approving the use of waterboarding (which the Spanish
Inquisition had the honesty to call tortura del agua) felt
satisfied in quibbling about whether the torture techniques he approved
were exceeded or augmented with others that had not been approved,
although, as I explain below, by doing so, he may have opened up a path
for the prosecution of those who did exceed or augment the approved
techniques, which did not exist before.

Bybee attempts to shift the blame onto John Yoo

In an analysis by the ACLU, what emerged from the transcript above
all was Bybee's evasiveness. Jamil Dakwar, Director of the ACLU's Human
Rights Program, conducted an analysis in which he noted that Bybee
said, "I don't recall" 75 times, "I don't know" 30 times, "I don't
remember" 9 times, "I don't believe" 3 times, and "I am not aware" 3
times. As described above, he also sought to shift attention to the CIA,
and, as Rep. Conyers noted in the press release announcing the release
of the transcript, also sought to shift the focus of scrutiny onto John
Yoo, noting that Yoo "never informed him of secret White House 'war
planning' meetings and that, based on what he knows now, he is 'worried'
that Yoo was too close to the White House."

This, again, is a fair point, as Yoo, unlike Bybee, was a member of
the "War Council" of lawyers who met regularly in the White House to
plan and implement the legal strategies they wanted for the "War on
Terror," largely without any outside consultation. The "War Council"
consisted of just six men: as well as John Yoo, there was David Addington, Vice President Dick Cheney's Legal
Counsel (and later Chief of Staff), Alberto Gonzales, White House
Counsel (and later Attorney General), White House Deputy Counsel Tim
Flanigan, William J. Haynes II, the Pentagon's General
Counsel, and his deputy, Daniel Dell'Orto.

Nevertheless, although Bybee was correct to point out that Yoo had
connections that he did not, his position, as head of the OLC, meant
that, if he had any doubts at the time, he should have expressed them.
It is hardly anyone else's fault that he not only failed to challenge
Yoo, but also willingly signed his name to memos that, as is clear, were
the result of specific requests emanating from the White House, which
were fundamentally at odds with the OLC's obligation to provide
impartial legal advice.

Bybee defends the memos, requiring his prosecution for
breaking the anti-torture statute

Despite Bybee's attempts to shift the blame onto others for the
outcome of the memos he signed, it remains fundamentally unacceptable
that he still stands by a memo that authorized the use of ten techniques
that included well-established forms of torture. As Rep. Conyers noted
on the release of the transcript, "Despite the widespread, bipartisan
criticism of the torture memos and the extreme view of presidential
power that they represent, Bybee testified that 'in terms of the
analysis, I am going to stand by the memo.'"

This was not news, of course. In April 2009, Bybee told the New
York Times, "I believed at the time, and continue to believe
today, that the conclusions were legally correct," and it is clear that
he still stands by those views, even though there are never any excuses
for attempting to justify the use of torture.

On the day the transcript was published, Bybee was still unrepentant,
telling the New
York Times that he was "proud of our opinions" at the Office
of Legal Counsel, and calling them "well researched" and "very carefully
written." He also provided the following excuse for his actions: "We
took a muscular view of presidential authority. We were offering a
bottom line to a client who wanted to know what he could do and what he
couldn't do. I wasn't running a debating society, and I wasn't running a
law school."

This is undoubtedly how Bybee regards his work on the "torture memos"
at the OLC, but unfortunately for him, the US anti-torture statute
mentioned above (Title
18, Part I, Chapter 113C of the US Code, introduced in 1994) and
the UN
Convention Against Torture do not allow for any leeway when
"offering a bottom line to a client who wanted to know what he could do
and what he couldn't do."

The US anti-torture statute requires
a fine, or 20 years' imprisonment (or both) for "[w]hoever outside
the United States commits or attempts to commit torture," and a death
sentence, or a prison sentence up to and including a life sentence, "if
death results to any person from conduct prohibited by this subsection,"
and the UN Convention Against Torture stipulates (Article 2.2), "No
exceptional circumstances whatsoever, whether a state of war or a threat
or war, internal political instability or any other public emergency,
may be invoked as a justification of torture." Moreover, the Convention
also stipulates (Article 4. 1) that signatories "shall ensure that all
acts of torture are offences under its criminal law" and requires each
State, when torture has been exposed, to "submit the case to its
competent authorities for the purpose of prosecution" (Article 7.1).

Why other prosecutions are required - and the OLC's "golden
shield" is no protection

With Bybee's testimony released out of the blue, it is not possible
to state with any certainty how the House Committee's investigation is
proceeding, although both Rep. Conyers and Rep. Jerrold Nadler (D-NY),
one of the Committee members involved in questioning Bybee, made
encouraging noises on the transcript's release.

Between them, Conyers and Nadler
focused on Yoo's unhealthily close relationship with the White House and
the ongoing investigation by veteran federal prosecutor John Durham
into the activities of CIA operatives who went beyond the OLC's
guidelines. This investigation was launched
by Attorney General Eric Holder last August, broadening the remit
of Durham, who had already been assigned to investigate the CIA's
destruction of videotapes recording the "high-value detainee"
interrogations by former AG Michael Mukasey.

Nadler noted that "the close relationship between John Yoo and the
administration warrants further investigation," adding, "Judge Bybee's
disclosures heighten the need for a special counsel to investigate the
development and implementation of interrogation policies following the
9/11 attacks," and Conyers noted, "These statements are highly relevant
to the pending criminal investigation of detainee abuse [by John Durham]
and I have provided the Committee's interview to the Justice Department
and directed my staff to cooperate with any further requests for
information." However, neither man mentioned that Bybee was still
defending his authorization of torture, which is, of course, illegal,
and should, by law, lead to his prosecution.

In addition, as Marcy Wheeler noted, what no one in a position of
authority has mentioned at all is that Eric Holder announced
a month ago that John Durham was close to completing his inquiry.
As he stated at the time, "What I made clear is that for those people
who acted in conformity with Justice Department opinions from the Office
of Legal Counsel that said you could do certain things ... people who
acted in good faith in line with the Department of Justice guidance,
will not be the people we are looking at or interested in. It's a
question of whether people went beyond those pretty far-out OLC
opinions, people who went beyond that. That's what we're looking at."

As Wheeler also noted, despite Holder's words, there has been "not a
squeak" about prosecuting those responsible for the death of Gul Rahman,
which was obviously not authorized by the OLC memos. Perhaps even more
crucially, Bybee's testimony makes it clear that almost the entire
"high-value detainee" program involved people who "went beyond those
pretty far-out OLC opinions" - those who used the waterboard on KSM and
Abu Zubaydah "with greater frequency" and "'in a different manner' than
OLC had approved," and those who indulged in sessions that involved, in
the Committee's words, "Diapering a detainee or forcing a detainee to
defecate on himself, forcing a detainee to wear blackout goggles,
extended solitary confinement or isolation, hanging a detainee from
ceiling hooks, daily beatings, spraying cold water on a detainee, and
subjecting a detainee to high-volume music or noise."

For those keeping count, it should be noted that, although the
"high-value detainee" program involved 28 prisoners, 66 more were subjected to a variety of torture
techniques - mainly in secret CIA prisons in Afghanistan - and many
more were subjected to a version of the CIA program - which, at the very
least, involved extended solitary confinement and the use of high-volume
music or noise - that was introduced by defense secretary Donald
Rumsfeld at Guantanamo.

The Obama administration can't have it both ways: either the OLC
memos provided a "golden shield" that the administration is unwilling to
remove, but those who exceeded the authorized techniques will be held
accountable, or the OLC memos were criminally inadequate, and everyone
involved in authorizing torture, whether supposedly approved by the OLC
or not, is culpable.

If, instead, we find that no one is to be held accountable for
anything, even when guidelines were exceeded, and techniques without OLC
approval were implemented with a wanton disregard for those guidelines,
leading, in at least one case, to the death of a prisoner, then we
really may as well forget about having any rules for anything, and
openly assert that - although the rules may now have changed - the record from the Bush years
establishes that the CIA can kill or torture anyone it wishes with
impunity, and that the government doesn't care.