-“The first thing we do, Let us kill all the lawyers.”
It seems that the foremost champions of the use of inhumane torture by CIA operatives and US military personnel against "enemy combatant" detainees are the chief legal officers of the United States Government. Recently disclosed memos from top US Department of Justice lawyers Jay Bybee and John Yoo specifically justify and declare that it is a legal practice to torture detainees. These legal memoranda further advise CIA operatives how to avoid prosecution under the Federal Anti-Torture Act. They represent the stark documentation of the moral decay and the depth of the ideological malaise within the Bush Administration.
In her new book, "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals," New Yorker magazine investigative reporter Jane Mayer reports that following the 9/11 attack on the World Trade Center, "For the first time in its history, the United States formally sanctioned government officials to physically and psychologically torment US-held detainees, making torture the official law of the land in all but name." The late American historian Arthur Schlesinger Jr., she says, told her that "the Bush administration's extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history." Over lunch in 2006, the year before Schlesinger died, he said, "No position taken had done more damage to the American reputation in the world - ever."
The Bybee – Yoo memos declare that harsh interrogation, up to the point of organ failure, would not qualify as “torture” that violates US or International laws [Bybee/Yoo I]. The follow-up memorandum [Bybee/Yoo Memo II] addresses a list of specific forms of torture that they declare to be legal, such as waterboarding [simulated drowning], sleep deprivation, prolonged exposure to cold or heat and use of dogs for intimidation. [Note that the use of dogs, like the alleged practice of desecrating the Koran, has additional weight because they are culturally and religiously offensive acts.] The government lawyers did caution that the harsh treatment, to ensure its legality, should take place outside the US borders. It is not clear whether this twist was added to make the activity less likely to be discovered, or whether they believed that the actions by US operatives against detainees in their control on foreign soil made a legal difference. Sen. Durbin of Illinois subsequently introduced an amendment to the Anti-Torture Act that eliminated any doubt about the distinction.
The practices in question emanate from documented practices used by the communist Chinese interrogators to torture American Prisoners in 1957 and to coerce false confessions from their captives. The effects of the practices have been studied and shown to produce inherently unreliable testimony as well as to leave potentially permanent physical and emotional damage to the captives subjected to such interrogation. These practices have been outlawed by the Geneva Conventions and denounced by every major human rights organization on the planet. So the Bush Administration lawyers have taken torture practices used by our past enemies against our military personnel and sought to legitimize their use in current field interrogation operations and detention facilities.
The argument now being advanced is that the CIA operatives are shielded from prosecution for their actions because they can claim “good faith reliance” upon the advice of legal counsel and upon orders from superiors stemming from the Justice Department memoranda. The CIA set up “black sites” to detain and torture prisoners in Poland, Pakistan and other remote locations apparently in reliance upon the "extraterritorial activities" caveat in the advice memoranda. The argument was even raised that treatment of prisoners at Guantanamo Bay [a US controlled enclave in Cuba] was legal because it was not done on American soil. Legal scholars have resoundingly discredited the definitions of torture, the factual assumptions and the legal analysis of the memoranda. The advice is not only legally untenable, it is morally repugnant. Yet it may be the best defense available to CIA and military operatives who routinely engaged in “harsh interrogation” practices against detainees if they are prosecuted for war crimes.
Considering the debate about the impact on detainees and the effectiveness of the techniques, would it not be most appropriate to subject the attorneys advancing such practices to a round of “harsh interrogation?” After undergoing such treatment, these lawyers could speak with confidence and personal conviction that the actions that they seek to sanction as legal interrogation are not unreasonable or inhumane. If Mr. Bybee and Mr. Yoo are so sure that the practices are within the letter and spirit of the laws and principles of US Justice, a test to see whether they could be induced to offer up confessions of acts they did not actually commit through use of the practices would seem fitting. What better way to display confidence in both the legal reasoning and the moral rectitude of their advice memoranda.
Since neither lawyer is likely to volunteer for such a reasonable trial to test their conviction in past advice, we might visit another flaw in their advice and the defense strategy of reliance on that advice. Consider the hypothetical: If a lawyer opines that robbing a bank is a justifiable redistribution of assets, Would a person reading the advice memorandum reasonably expect to be exonerated for armed robbery based upon his reliance on such advice? Would shooting the guard because the guard interfered with the goal of redistributing the assets likewise be excused? Why then should CIA operatives believe that their reliance upon memoranda and "legal advice" that fly in the face of the express prohibitions of US statutes and international law and practices that have been accepted for decades would excuse their inhumane treatment of detainees?
Going forward, the best advice would be to require any other government lawyer who seeks to rationalize of justify such practices in advice to intelligence or military personnel to undergo the treatment that they seek to endorse. If after being subjected to the treatment they still believe that the practices should be permitted, let them then sign the advice memoranda.
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