18 April 2009
In 2002, Jay Bybee (now a Federal Judge on the 9th Circuit Court of Appeals) wrote a memo as part of his duties with the Office of Legal Council. This assignment became the infamous "Bybee Memo". It made a legal argument for moving particular interrogations into an "increased pressure phase". This memo dealt with the treatment of Abu Zubaydah. His name should sound familiar. He was sold to most of us as an al Qaeda mastermind, more recent evidence suggests that he was more of a hanger on and should have never been considered a high value target. However, operating under the assumption that they had a meaningful intelligence target the CIA wished to use techniques that weren't "approved". This memo gave them (written to John Rizzo, Acting General Council to the CIA) the fuzzy legal rationale for doing things that were not only illegal, but were against the ideals of this nation. Or at least I think it is. Others seem to not be so sure.
Just so we are clear.....
When this memo was written - Torture was ILLEGAL under the United States Code. (It still is, but the code has been tweaked a bit).
United States Code, Title 18, Chapter 113, Section 2340 -- Definitions
As used in this chapter --
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from --
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, or mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) "United States" includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49.
United States Code, Title 18, Chapter 113, Section 2340A -- Torture
(a) Offense.--Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.--There is jurisdiction over the activity prohibited in subsection (a) if--
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender
Contrary to what Rush seems to think, the outrage over these memos and the conduct of these interrogators is not about them slapping people around - or in the case of Joe Scarborough, we aren't upset by them throwing a little water in someone's face. The outrage is over waterboarding, over convincing detainees that the would be killed if they didn't talk, sleep deprivation (that according to the memo could be as long as 11 days), stress positions for hours upon hours, being crammed into a small dark, dank box for hours on end....these are things that we would not want to be done to American soldiers/citizens and as such we should under no circumstances use these techniques, no matter what kind of legal "loop holes" can be found.
One of my biggest issues with this is that these detainees often were subjected to these types of tactics, without being proven guilty of ANYTHING. Warlords turned people in for money - and we took their word for it. People were rounded up for being in the wrong place at the wrong time. If you would like more information on this subject: I highly recommend the film: Taxi to the Dark Side.
If this film doesn't make you sick and angry at the conduct depicted, please seek help from a mental health professional.
Many seem to think the disclosure of these memos some how "weakens" our country. I wholeheartedly disagree. Conducting ourselves and governmental affairs under the rule of law has been an important principle of our nation since its founding. We have not always lived up to that principle - but I do not believe we should ever abandon the pursuit.
The disclosure of these memos is a step in the right direction. We must purge this and the rest of the demented frat boy behavior that has permeated the military/contractor/intelligence ranks. Bottom line...if we wouldn't want it done to one of ours, we shouldn't do it.
I was distressed that President Obama stated that the interrogators would not be prosecuted for their role in detainee abuse and torture. I hope that this does not mean that the legal minds that perverted our law to allow this will get off the hook. These people KNEW this was wrong - they ignored the spirit and bent the word of law to allow this. They must be held accountable, if there was pressure from above to make the case, they should be held accountable as well.
I have only read the first memo - I'm still trying to get through the others and the Red Cross report - so this will probably end up as a bit of a series. I am very interested in your input on this issue, so please don't be shy!