The Torture Question
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redefining torture?

The most notorious document among the memos drafted by President Bush's legal advisers as they analyzed how far the U.S. could go to extract intelligence from those captured in the war on terror is known as the "Bybee memo." (PDF File) Some call it the "torture memo."

The Aug. 1, 2002 memo, sent from Assistant Attorney General Jay S. Bybee to Alberto R. Gonzales, counsel to the president, parsed the language of a 1994 statute that ratified the United Nations Convention against Torture and made the commitment of torture a crime. To be torture, the memo concluded, physical pain must be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." And inflicting that severe pain, according to the memo, must have been the "specific intent" of the defendant to amount to a violation of the statute. Human rights groups reacted with horror when the Bybee memo was leaked to the press in June 2004, and it was quietly rescinded by the Justice Department on Dec. 30, 2004, just days before Gonzales was to appear before the Senate Judiciary Committee on his nomination as attorney general of the United States. (Meanwhile, Bybee in 2003 had been nominated and confirmed as a judge on the 9th U.S. Circuit Court of Appeals.)

But this very narrow definition of torture was only one part of the memo, which largely was written by Assistant Attorney General John Yoo. It also asserted that the U.S. ratification of the 1994 torture statute could be considered unconstitutional because it would interfere with the president's power as commander in chief. (Supreme Court Chief Justice John Roberts was asked about this part of the memo during his confirmation hearings.) Taken in concert with the Congressional authorization passed on Sept. 14, 2001, which gave the president sweeping power to conduct the war on terror, and other recently released documents, the memos flesh out the Bush administration's expansive, and controversial, view of executive powers.

Here, commenting on this extraordinary memo, are: Dana Priest, Washington Post reporter; Jane Mayer, staff writer at The New Yorker; John Yoo, deputy assistant attorney general, Justice Department's Office of Legal Counsel 2001-2003; Bradford Berenson, associate White House counsel from 2001 to 2003; and Mark Danner, author of Torture and Truth: America, Abu Ghraib and the War on Terror.


Reporter, Washington Post

Dana Priest

There was this debate about how far you could push interrogations. The CIA asked for a legal opinion on this, and the Office of Legal Counsel, which is the really the White House's legal advisory group, although it is within the Justice Department, wrote a memo that was finally out on Aug. 1, 2002, which it doesn't talk about techniques; it's a legal opinion trying to read the Geneva Conventions. And it is amazing what it says. It basically says that the commander in chief can disregard any other law during time of war … and tried to define what is torture. And its definition of torture was so unconventional that the administration had to pull it back from use when it was discovered. …

What it said about torture was that the physical or emotional pain, had to be so bad that it either caused organ failure, permanent damage, or death and anything short of that was not torture. It could be inhuman treatment, but under the law, inhuman treatment gets different kind of criminal statute, penalty than torture. Torture, you know, is a much graver crime. …

jane mayer

Staff Writer, The New Yorker

Jane Mayer

What that memo did is it defined torture down. It miniaturized it in some ways so that the only thing that really winds up being torture is inflicting pain on someone of an order that would be equivalent to organ failure. And it has to be the intentional infliction of pain, which any lawyer will tell you creates a certain amount of leeway because you could always argue, "Oh, I didn't really mean for it to be so painful." So it was clever, but it was probably something that they felt they needed to do in order to make sure they didn't face any legal liability here.

Is your sense as a reporter covering it that they really were worried about this? The war criminal aspect of it?

You know, it seems very far-fetched. … In the interpretation of the law as John Yoo sees it, there is no legal liability because the executive in a time of war has almost unlimited powers. And as he explained it to me, the president would have the right to even have prisoners tortured and the only recourse to that would be that Congress could then have him impeached. But really as John Yoo sees the law, the president has almost unlimited powers here.


Deputy assistant attorney general, Justice Department's Office of Legal Counsel, 2001-2003

John Yoo

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A lot of people, of course, read what has become known as the torture memo. [It has been characterized as] very broadly defining what constitutes torture. Is that a fair characterization of it?

I don't think it's overly broad; I think it's pretty broad. But I think that's what Congress did when they passed the statute. Congress did not define any of the terms of the statute, and the way it's been applied so far has been to prohibit terrible things. But I think when you look at its application, the things that fall short of physical abuse -- they talk about things like isolation or having people only sleep for six hours a day or so on. I think those are things most people think are not torture and the statute doesn't seem to prohibit by its language.

Again, I think this is a case where people want the law to provide answers, to dictate with certainty what you are and are allowed to do. But this statute doesn't speak in those kind of clear terms. It just says "severe physical pain or suffering." It doesn't tell you what that phrase means. And the one thing I think we don't want is for the government to be hamstrung in the way it interrogates people who have knowledge of pending attacks on the United States because we have so much disagreement about what those phrases mean that we can't do anything.

The laws as they were written and the Constitution that we have gives a president a lot of power in wartime. The president is the commander in chief, and Congress writes statutes to try to give the president discretion to make the policies that will help win the war on terrorism. It goes back to the statute that was passed by Congress right after Sept. 11 that gave the president broad authority to use all necessary means to bring to justice or to stop attacks that would be launched by anyone connected to the Sept. 11 attacks.

There's a different part of the [Bybee] memo that talks about that more difficult question: What happens if the president, as commander in chief, feels that he needs to go beyond the rules set by the torture statute because he believes that there's an attack about to occur in the United States, and needs to do what is necessary to stop that attack from occurring, which we call the "ticking time bomb" hypothetical?


Well, I think in this area, I think the Justice Department had long thought that Congress couldn't limit the commander-in-chief power; that Congress cannot tell the president how to exercise his judgment as commander in chief. An example is the War Powers Resolution. Congress had said, "The President may not use force abroad for longer than 60 days without our permission." The Justice Department and presidents of both parties have long thought that was an unconstitutional infringement on their power. And so we've similarly thought if it came to that, if the president really made this decision, that there are these extraordinary circumstances where the president needs to order interrogation that's in conflict with the congressional regulation, that that regulation will be unconstitutional, too.


Associate White House Counsel, 2001-2003

Bradford Berenson

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And there were other people who were a little bit imprisoned in old categories, old rules, who hadn't fully made the transition, made the shift into accepting acts of catastrophic, mass-casualty terrorism as true acts of war that really did call forth a military response and call upon the president's powers as commander in chief. You know, there are things that lay within the outer margins of the president's authority that for a variety of reasons over the years simply hadn't been done. But in the new environment, with the new attitude, we were now determined to do that. …

There was relatively little tolerance for … timidity in the weeks and months after 9/11. People were either on the bus or off the bus. The people who were on it were driving it; the people who were off it were typically ignored to a large extent. But that doesn't mean that there was any feeling on the part of the people who were on the bus that we were going to expand presidential power. The trick was really to make sure its full existing extent was used.


Author, Torture and Truth: America, Abu Ghraib, and the War on Terror

Mark Danner

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When it comes, for example, to presidential power, if you look at these memos, and in particular the torture memo, you see one of its arguments is that the president in essence during wartime can do what he wants. There is a very strong argument, or at least very vigorous argument, saying that in effect, you cannot limit the president's power to interrogate a prisoner as he wants, because it's in his power; that is, the executive and international treaties cannot so limit the president.

Now, that particular argument, so far as I can tell, is not accepted by the mainstream at all of legal opinion in this country. In the memo, you do not see cited major precedents. The actual key precedents on issues of presidential power, one of which is Youngstown Steel, which had to do with President Truman seizing the steel mills during the Korean War, very famous case, key case on the limitation of presidential power, it's not even in the memo.

So in order to argue that in essence these are nonpolitical arguments, these are simply lawyers telling you what they believe, it seems to me you have to have at least a mildly convincing argument that the legal homework has been done. And if you look at these documents, as far as I can tell, the legal homework hasn't been done. What they are doing is arguing very strongly a particular position in the guise of giving you a neutral legal opinion. …

You see mixed with this a notion of a legal belief that has been embedded in the Federalist Society and various radical lawyers on the right wing that are now in power. ... It's almost a royalist idea of power; that the president, if he wants to interrogate a prisoner in whatever way he wants, he cannot be stopped, neither by the other institutions of government nor by international treaty nor by domestic statute, because these are under his war powers. So you see an untrammeled notion of executive power that's very radical in American history, but that happens to come forward at this time because of the particular administration you have in power and the event that has happened.

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posted oct. 18, 2005

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