The August 1, 2002 Bybee Torture Memo

Discussion in 'Politics' started by D_Ireonsyd_Colonrinse, May 16, 2009.

  1. D_Ireonsyd_Colonrinse

    Dec 27, 2007
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    The Jay Bybee Memo is probably the most notorious "torture memo", an Aug. 1, 2002 memo, sent from Assistant Attorney General Jay S. Bybee (who worked for the Department of Justice's Office of Legal Council) to Alberto Gonzales.

    The 2002 "torture memo" (sometimes called the "organ failure memo"), a legal opinion, was written by members of the Bush administration's OLC when the CIA requested legal advice on detainee interrogation.

    Authored by John Yoo, Jay Bybee, and with aid from David Addington (who was legal councel to Vice President Dick Cheney), the memo describes the limitations on the behavior of U.S. government interrogators outside the United States as governed by the United Nations Convention Against Torture.

    The CIA had been conducting "harsh" interrogations at Guantanamo Bay and at covert CIA Black Sites. There is evidence that the CIA felt they may have been engaing in illegal activity by violating both U.S. congressional and international law, so a legal justification for the harsh interrogations was composed. This memo's legal analysis has been repudiated by the new management of the Office of Legal Counsel. Former CIA Director Michael Hayden banned waterboarding in 2006.

    The Bybee Torture Memo begins:

    Memorandum for Alberto R. Gonzales
    Counsel to the President

    Re. Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A

    You have asked for our Office’s views regarding the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States Code. As we understand it, this question has arisen in the context of the conduct of interrogations outside of the United States. We conclude below that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture. We conclude by examining possible defenses that would negate any claim that certain interrogation methods violate the statute.

    In Part I, we examine the criminal statue’s text and history. We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute’s definition to track the Convention’s definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.

    Bybee Torture Memo- The Full Text


    To recap. Torture would now be redefined by the Bush administration as anything that stops short of organ failure or death.

    Yale law school Dean Harold Koh called it "perhaps the most clearly erroneous legal opinion I have ever read" which "grossly overreads the president's constitutional power."[

    Former Nixon White House counsel John Dean concludes that the memo is tantamount to evidence of a war crime.

    After Jay Bybee helped author this legal opinion, George W. Bush appointed him to a lifetime job as a federal judge (that's where he works today: for the United States Court of Appeals for the Ninth Circuit).

    Columnist Robert Scheer asked if Bybee's appointment to a lifetime job as a federal judge was reward for writing the torture memo. He writes: "Was it as a reward for such bold legal thinking that only months later Bybee was appointed to one of the top judicial benches in the country?... The Bybee memo is not some oddball exercise in moral relativism but instead provides the most coherent explanation of how this Bush administration came to believe that to assure freedom and security at home and abroad, it should ape the tactics of brutal dictators".

    On April 19, 2009 an editorial in The New York Times said that Bybee is "unfit for a job that requires legal judgment and a respect for the Constitution" and called for Bybee's impeachment from the federal bench. Friends of Bybee have indicated that the jurist privately regrets the controversial memo's inadequacies and growing notoriety.

    In an April 25, 2009 Washington Post article, Senate Judiciary Committee Chairman Patrick J. Leahy (D-VT) is quoted: "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," adding that "the decent and honorable thing for him to do would be to resign".

    Judge Betty Fletcher, member of the United States Court of Appeals for the Ninth Circuit for 30 years, is quoted from a statement: “He is a moderate conservative, very bright and always attentive to the record and the applicable law. I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document”.
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