How to Get Away With Torture

By Dan Froomkin
Special to washingtonpost.com
Friday, July 25, 2008; 11:56 AM

Editor's Note

Dan Froomkin is off on Monday, July 28.


Here's the official policy on torture from the administration that decries moral relativism: It's in the eye of the torturer.

The American Civil Liberties Union yesterday released three heavily blacked-out documents it received as a result of its ongoing, four-year-old Freedom of Information Act lawsuit. One document is a previously undisclosed August 2002 memo to the CIA from the Justice Department Office of Legal Counsel, which essentially offers a guide to how to torture and get away with it.

Here's an excerpt:

"To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. As we previously opined, to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering. . . . 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. . . . A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain and suffering. . . . Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it.

"Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. . . .

"Furthermore, no specific intent to cause severe mental pain or suffering appears to be present. . . . 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."

A 2004 memo from the CIA to the OLC notes the 2002 Justice Department opinion that OK'd interrogation techniques "including the waterboard."

To put this in context, recall that waterboarding has been an archetypal form of torture dating back to the Spanish Inquisition. It involves strapping someone to a board and essentially drowning them. The U.S. government, along with most other civilized nations, has historically considered it a war crime.

The Coverage

Joby Warrick writes in The Washington Post: "Lawyers for the Bush administration told the CIA in 2002 that its officers could legally use waterboarding and other harsh measures while interrogating al-Qaeda suspects, as long as they acted 'in good faith' and did not deliberately seek to inflict severe pain, according to a Justice Department memo made public yesterday.

"The memo, apparently intended to assuage CIA concerns that its officers could someday face torture charges, said interrogators needed only to possess an 'honest belief' that their actions did not cause severe suffering. And the honest belief did not have to be based on reality."

The newly disclosed memo, signed by then-Assistant Atty. Gen. Jay Bybee -- now a federal appeals court judge -- was issued the same day Bybee signed a previously disclosed memo defining torture as "extreme acts" causing pain equivalent to death or organ failure. That opinion was withdrawn two years later.

Scott Shane writes in the New York Times that the August memo "is believed to describe in detail the methods the C.I.A. was using on Abu Zubaydah, a Qaeda logistics specialist captured in Pakistan in 2002."

Shane focuses on newly disclosed reporting requirements: "When Central Intelligence Agency interrogators used waterboarding and other harsh techniques on Qaeda suspects, agency rules required detailed records of each method used, its duration and the names of everyone present, according to one of three heavily redacted government documents made public on Thursday."

Spencer Ackerman writes in the Washington Independent: "'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 because 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.' . . .

"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.'"

Glenn Greenwald blogs for Salon: "What's particularly notable here -- beyond the fact that this is further proof that our Government has engaged in deliberate, systematic and illegal torture -- is what a closed, secretive society we've become. Even the memos which the ACLU obtained -- between four to six years old -- are heavily redacted, with the vast bulk of the legal conclusions of our Government simply blacked out. We just don't live in an open society, as most of the most consequential actions in which our Government engages are undertaken behind an increasingly impenetrable wall of secrecy.

"The vast bulk of these memoranda consist of nothing more than legal arguments as to why the Bush administration claimed it had the authority -- as the ACLU's Jameel Jaffer put it -- 'to permit interrogators to use barbaric methods that the U.S. once prosecuted as war crimes.' There is absolutely no justification whatsoever for these Memoranda to be concealed from the public. All they do is set forth the Executive Branch's purported understanding of the law. How can legal arguments about the President's alleged authority possibly be secret? . . .

"It has been left to the ACLU and similar groups (such as the Center for Constitutional Rights and Electronic Frontier Foundation) to uncover what our Government is doing precisely because the institutions whose responsibility that is -- the 'opposition party,' the Congress, the Intelligence Committees, the press -- have failed miserably in those duties."

War Crimes Watch

Dahlia Lithwick writes for Slate: "There's not much dispute that domestic and international laws were broken in pursuit of the war on terror. . . .

"[T]he question for most of us now is not whether laws were broken, but what to do about it. . . .

"There is a small but growing constituency for the prosecution of torture memo author John Yoo; Jim Haynes, former general counsel at the Defense Department; Defense Secretary Donald Rumsfeld; David Addington, the vice president's general counsel; and others. . . .

"At the other end of the spectrum are the suggestions of an amnesty deal for everyone who had any sort of finger in the torture pie. . . .

"In Newsweek last week, my colleague Stuart Taylor wrote that the president 'ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers.'

"Taylor would do away with any possibility of criminal prosecution in favor of a truth commission. Nicholas Kristof also seeks a 'truth and reconciliation' commission, modeled after the South African response to apartheid. Such a commission would 'lead a process of soul searching and national cleansing.'

"I don't know about you, but sometimes I believe there's nothing quite as cleansing to the soul as an indictment. I am less sanguine than Taylor that a promise of sweeping prospective immunity for all Bush administration wrongdoers would lead to a great outpouring of candor and revelations. For one thing, the Bush administration has already sought to immunize itself for every kind of lawbreaking -- often within hours of violating the law -- and yet still it has classified or claimed privileged in relation to almost every aspect of the war on terror under some shape-shifting theory of state secrecy or executive privilege. To Taylor's and Kristof's suggestions that truth will out if some formal bipartisan body with subpoena power is empaneled, I'd respond that we have such a body. It's called Congress. . . .

"[W]e need careful investigation before we take the possibility of criminal prosecution off the table."

Today's Hearing

The House Judiciary Committee today is holding a hearing on the " Imperial Presidency of George W. Bush and possible legal responses." ( Live video.)

Among the 13 witnesses: Democratic Rep. Dennis Kucinich, who advocates impeachment for both Bush and Vice President Cheney, as well as anti-war Republican Rep. Walter Jones.

Keith Perine writes for CQ: "In prepared testimony for a committee hearing, Kucinich said Bush should be held accountable for leading the nation into an unwarranted invasion of Iraq. . . .

"Lamar Smith , the top Republican on the panel, said 'Nothing is going to come out of this hearing with regard to impeachment of the president. I know it, the media knows it, even the Speaker knows it.' Smith added that the hearing 'will only serve to impeach our own credibility.'"

John Dean writes for Findlaw that he was going to appear, but got the flu. He writes that what he would have done is point out that unlike Watergate, when Republicans finally turned against Richard Nixon's lawlessness, "today's Republicans . . . have no moral lines that they will draw."

Dana Milbank sketches the hearing for washingtonpost.com.

Burrowing Watch

Carrie Johnson writes in The Washington Post: "Two leading Senate Democrats asked Attorney General Michael B. Mukasey yesterday to 'exercise vigilance' and ensure that political appointees do not improperly wheedle their way into permanent slots at the beleaguered Justice Department. . . .

"'It would be very damaging to Justice Department morale to allow any burrowing in at all,' said Paul C. Light, a New York University professor who has studied the phenomenon. 'Wrong signal, wrong time.'"

Bush and the GOP

Laura Litvan writes for Bloomberg: "In 2006, Republican Representative Marilyn Musgrave welcomed President George W. Bush to her Colorado district for a rally on the weekend before Election Day. In the run-up to this year's balloting, Musgrave has bucked Bush by voting to override his vetoes of Medicare and farm bills.

"In Oregon, Republican Senator Gordon Smith is running a commercial highlighting his support for federally funded embryonic stem-cell research, which Bush opposes. Even Kansas Republican Pat Roberts, who has been a loyal Bush backer in the Senate, is running ads promoting his work, over White House objections, to expand health insurance for children.

"As Bush nears the end of his presidency with one of the lowest public-approval ratings in polling history, Republican lawmakers striving to save their jobs are proclaiming their independence from the White House on issues from health care to the rescue plan for mortgage-finance companies Fannie Mae and Freddie Mac."

Julie Hirschfeld Davis writes for the Associated Press: "President Bush pulled the rug out from under Republicans this week when he abruptly dropped his opposition to a massive housing rescue. Their reaction? Good riddance.

"Three-quarters of House Republicans defied Bush and voted against the package. . . .

"The split reflected an every-man-for-himself mentality that has taken hold in GOP circles in a challenging political environment in which Bush, with record-low approval ratings, is seen as an albatross around the necks of vulnerable Republicans.

"'For these members -- particularly those on the bubble -- there's no percentage in being seen as a Bush lackey,' said Rep. Tom Davis, R-Va."

But wait, not so fast. Jackie Kucinich writes for The Hill: "Republicans on the House Financial Services Committee are asking President Bush to reconsider his pledge not to veto a housing bill that passed the lower chamber on Wednesday."

Bush and Obama

Anne Gearan writes for the Associated Press: "Barack Obama wants to sound like the voice of reason on U.S. foreign policy -- the guy who would abandon Bush administration policies he sees as shortsighted, self-defeating or just plain wrong. Problem is, George Bush keeps beating him to it.

"The administration's turnabout on a timeline for a U.S. troop withdrawal in Iraq and its new willingness to sit down and talk with adversaries Iran and North Korea make it hard for Obama to define himself as the clear alternative.

"The shifts don't help John McCain, either.

"As the White House blurs formerly sharp lines, Bush's would-be Republican inheritor is left to defend positions that the administration has left behind. In the case of Iraq, McCain now stakes a position more absolute than Bush and less popular with voters."

But wait, not so fast. How about the issue of human rights?

Tabassum Zakaria writes for Reuters: "President George W. Bush on Thursday urged his successor to carry on what he called his 'freedom agenda' of promoting human rights, democracy, and free trade around the world.

"Bush, with six months left in office, peppered a speech to mark 'Captive Nations Week' with the phrases 'in the years ahead' and 'the challenge for future presidents and future Congresses' -- a nod to his waning White House days. . . .

"'Over the past seven years, we've spoken out against human rights abuses by tyrannical regimes like those in Iran, Sudan, and Syria and Zimbabwe,' Bush said."

But as Zakaria points out, understatedly: "Human rights activists and others have criticized Bush for setting up the detention facility at the U.S. Naval base at Guantanamo Bay, Cuba, where terrorism suspects have been held for years in the aftermath of the September 11, 2001, attacks.

"They said harsh treatment of prisoners in Afghanistan and Iraq and the practice of secretly flying detainees to third countries where critics say they were tortured undermined the credibility of the United States as a defender of civil rights."

Poll Watch

The latest Fox News poll finds Bush's approval rating at an all-time low of 27 percent, with disapproval at an all-time high of 66 percent.

Batman Watch

Andrew Klavan writes in a Wall Street Journal op-ed: "There seems to me no question that the Batman film 'The Dark Knight,' currently breaking every box office record in history, is at some level a paean of praise to the fortitude and moral courage that has been shown by George W. Bush in this time of terror and war. Like W, Batman is vilified and despised for confronting terrorists in the only terms they understand. Like W, Batman sometimes has to push the boundaries of civil rights to deal with an emergency, certain that he will re-establish those boundaries when the emergency is past.

"And like W, Batman understands that there is no moral equivalence between a free society -- in which people sometimes make the wrong choices -- and a criminal sect bent on destruction. The former must be cherished even in its moments of folly; the latter must be hounded to the gates of Hell."

Cartoon Watch

Tom Toles on the Bush/Cheney Obama critique; Alan Moir and Adam Zyglis on Bush's "time horizon"; and Nick Anderson on Bush's idea of a joke.

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