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New Torture Memo Shields Interrogators

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THE PROGRESSIVE REVIEW - July 28, 2008
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New Torture Memo Shields Interrogators
by: Spencer Ackerman
The Washington Independent

One of the most important building blocks in the Bush 
administration's apparatus of torture became public today.

An Aug. 1, 2002 memorandum from the Justice Dept.'s Office 
of Legal Counsel to the Central Intelligence Agency 
instructed the agency's interrogators on specific 
interrogation techniques for use on Al Qaeda detainees 
in its custody. Most of the 17-page memo is blacked out 
and unreadable. But at least one of those techniques is 
waterboarding, the process of pouring water into the mouth 
and nostrils of a detainee under restraint until drowning 
occurs. 

"This is a critical piece of the story," said Jameel 
Jaffer, head of the national security project at the 
American Civil Liberties Union, which obtained the 
memorandum under a Freedom of Information Act filing. 
"This is the most explicit statement out there that the 
CIA waterboarded prisoners becaused the Justice Dept. 
authorized them to do so." 

Herman Schwartz, professor of law at American University, 
said the legal advice on display in the memorandum amounted 
to "out-and-out-fraud." 

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Today, Judge Alvin K. Hellerstein of the U.S. District 
Court for the Southern District of New York, who has been 
adjudicating the ACLU's extensive declassification lawsuit 
against the U.S. government for the past four years, 
ordered the memorandum released. Signed by Jay Bybee,
then the head of the Office of Legal Counsel, the 
memorandum is heavily influenced by the legal theories 
of Bybee's then-subordinate, John Yoo. Torture-watchers 
have long referred to the memo, which congressional 
inquiries identified years ago, as "Yoo-Bybee II." 

That's because Yoo-Bybee I, written around the same time 
as this document, contended that it would only be illegal 
for interrogators to inflict pain upon detainees equivalent 
to "organ failure, impairment of bodily function or even 
death." Anything short of that standard, that memo argued, 
was legal under the Federal Torture Statute. This newly 
declassified memo was an attempt at practicality: given 
the legal standard laid out in the first memo, Yoo-Bybee 
II advised the CIA on specific interrogation techniques 
that were now permissible. 

"You have asked this Office's views on whether certain 
proposed conduct would violate the prohibition against 
torture," Bybee wrote to the CIA on Aug. 1, 2002. While 
that "proposed conduct" is all redacted from view, another 
document declassified today -- a CIA memo from 2004 back 
to the Office of Legal Counsel -- refers to a "classified 
2002 DoJ opinion" that "interrogation techniques including 
the waterboard" are legal. Jay Bybee, Office of Legal 
Counsel 

It is impossible to know for sure what exactly the 
memorandum says, thanks to its heavy redactions. But 
it appears that the Yoo-Bybee II memo explains how CIA 
interrogators can evade prosecution for torturing 
detainees. "To validate the statute, an individual must 
have the specific intent to inflict severe pain or 
suffering," it reads at one point. "Because specific 
intent is an element of the offense, the
absence of specific intent negates the charge of torture. 
... We have further found that if a defendant acts with 
the good faith belief that his actions will not cause 
such suffering, he has not acted with specific intent." 

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In a phone interview, Jaffer called the contention 
"sweeping," adding that it had never been accepted by any 
court. "Imagine that in an ordinary criminal prosecution," 
he said. "A bankrobber tortures a bank manager to get the 
combination to a vault. He argues that the torture was not 
to inflict pain, but to get the combination. Every torturer 
has a reason other than to cause pain." 

He continued, "If you're going to let people off the hook 
for an intention other than to cause pain, you're not 
going to be able to prosecute anyone for torture." 

American University's Schwartz also took exception to the 
memorandum's definition of torture. "Their definition is 
outrageous," he said in a phone interview. "Excruciating 
pain even for 30 seconds will induce people to say 
anything." 

At another point, the memo contended that in order for 
the torture to be illegal, it had to occur "outside of 
the United States." That would help explain why the CIA 
established the so-called "black sites" -- undisclosed 
torture chambers -- in Poland, Romania, and other 
countries. The fear of a change in that standard by a 
piece of 2004 legislation is included in the just-released 
2004 CIA memo. A proposed amendment by Sen. Dick Durbin 
(D-Ill.) to the year's defense authorization bill stated, 
"no person in the custody or under the physical control 
of the United States" shall be tortured, and the CIA sent 
that language, underlined, to the Justice Dept. for advice 
on its implications. It is unclear how Justice replied, 
if at all. (The amendment passed, but it is unclear what 
effect it had.) 

Similarly, when it comes to mental duress, the Justice 
Dept. wrote that the "exclusive" prohibitions under the 
Federal Anti-Torture Statute were "the intentional 
infliction or threatened infliction of severe physical 
pain or suffering; (2) the administration or application, 
or threatened administration or application of mind 
altering substances or procedures calculated to disrupt 
profoundly the senses or the personality; (3) the threat 
of imminent death; or (4) the threat that any of the 
preceding acts will be done to another person." It would 
not be permissible to cause "prolonged mental harm," 
defined in the Yoo-Bybee II memo as "harm lasting months 
or even years after the acts were inflicted upon the 
prisoner." 

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Last month, however, Physicians for Human Rights released 
a study of 11 torture survivors from U.S. detention 
facilities in Iraq, Afghanistan and Guantanamo Bay. All 
exhibited continuing damage from their treatment, with 
many reporting depression, substance abuse and attempted 
suicide. Yet none of those former detainees were subjected 
to waterboarding. In the report's introduction, ret. Army 
Maj. Gen. Antonio Taguba, who investigated the torture at 
Abu Ghraib, wrote, "there is no longer any doubt as to 
whether the current administration has committed war 
crimes." 

Yoo did not respond to a phone call to his Berkeley office 
requesting comment. Neither did the office of Sen. Patrick 
Leahy (D-Vt.), chairman of the Judiciary Committee, which 
subpoenaed -- but never received -- the Yoo-Bybee II memo 
last year. 

The military has conducted more than a dozen investigations 
into torture committed by officers and enlisted personnel, 
and has prosecuted many offenders. But the CIA has 
conducted only one quasi-investigation, performed by its 
inspector general, John Helgerson. (For that, Helgerson 
found himself investigated by the office of CIA Director 
Michael Hayden.) 

"It's very easy to make a case for a serious criminal 
investigation," Jaffer said. "There is copious evidence 
at this point that senior officials authorized torture, 
and as a result of the authority given to them by senior 
officials, CIA interrogators tortured prisoners in their 
custody. It's a disgrace there hasn't been a serious 
investigation of why CIA adopted interrogation methods 
that amount to torture and what happened as a result." 

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