Torture questions continue to dog the government

Questions surrounding the use of torture by U.S. government personnel in the period following the attacks of September 11, 2001 continue to dog those involved, including the lawyers whose opinions provided the green light for such activities. 

The U.S. House of Representatives Judiciary Committee has just released a transcript of a lengthy, closed-door interview of Jay Bybee, now a federal judge in Nevada.  The recent interview dealt primarily with actions in which Bybee was involved in 2002, during which time he served as an assistant attorney general heading the Office of Legal Counsel (OLC).  This was the office that provided numerous legal memoranda to the CIA supposedly to guide its officers in conducting lawful “interviews” of so-called “high value detainees” overseas. 

The Bybee transcript and his earlier memos are revealing as a primer in the very clever methods whereby CIA officials presented convoluted requests to the Department of Justice, in order to secure opinions that the techniques the Agency intended to use or was in fact using were “lawful.”  With such a legal opinion in hand, lawyers at the CIA could then assure those participating in questionable activities that they would not later run the risk of being prosecuted for violating U.S. anti-torture laws; in effect, a “get out of jail free” card.

The techniques subsequently revealed to have been used by the CIA on suspected terrorists included the now well-known act of “simulated” drowning known as “waterboarding”; but also, slamming prisoners against walls, slapping them in the face repeatedly, hitting and kicking prisoners, prolonged sleep deprivation, and dousing them with cold water. 

The Bybee interview, as well as a review of one 2002 memorandum sent by him to the CIA, illustrate the cat-and–mouse game played by the respective officials in order to get the opinions they want.  The requesting agency (in this case, the CIA) posed very specific “hypothetical” facts to the Justice Department, which were then repeated back to the Agency official; these are then reflected in the resulting memorandum concluding that the actions thus described would not be unlawful.  Left unsaid are innumerable, nuanced details; including the force with which a physical contact can be made, precisely how waterboarding sessions would be conducted (which can make a significant difference in the degree of physical and mental pain inflicted on the recipient), or how many times a particular technique might be employed.

Interestingly, even such a term as “times” when used to describe the number of sessions to which a waterboarded prisoner was subjected, becomes an excruciating lesson in sophistry.  Does it mean that a prisoner who later was determined to have been waterboarded up to 183 “times,” was in fact waterboarded that number of times? Or, might it refer instead to the situation in which, during a single session, water was poured over his covered face 183 “times.”  (Yes, there is an actual discussion along these lines recounted in the Bybee interview.)

In the end, prosecutions of government officials for engaging in unlawful torture may be difficult, if not impossible because of the legal mess created by the so-called “Bybee memos” and other such opinions.  Indeed, Attorney General Eric Holder has stated publicly that CIA officials who engaged in acts as to which OLC opined were lawful will not be prosecuted. 

This distressing scenario raises serious concerns about the role played by lawyers at the Justice Department.  Should their duties include providing legal advice to administration officials justifying questionable actions in advance, and thereby immunizing employees from future prosecution for criminal acts?  Or should it be to do their best to insure that our government officials – all our government officials – obey and operate within the law; and then prosecuting them if they do not?  Sadly, more often than not the former, rather than the latter perspective, appears to be the norm.

66 comments Add your comment

A CONSERVATIVE

July 26th, 2010
4:23 pm

I HAVE NO PROBLEM whatsoever…with beating the hell out of a suspected terrorist for info…Fight the war the way General Sherman fought the battle of Georgia…Match to the Gulf & kill every one in sight…not in a Union uniform….Johnnie Reb…..& his whole family..,KILL them all & go home..

Once "Recent" Reader

July 26th, 2010
4:32 pm

Get Real . . . .. .This is not about liking or not liking who we are torturing . . . .it is about the overall and future ramifications of a US Administration openly supporting and backing torture. We lose the moral high ground . . .which damages our image . . .which lessens the chance of getting international support. Now if you want us to be Cowboys and go it alone . . .fine. But in the end that just hurts us more. And tell me one study that has indicated you get more from torturing than not torturing!! Of course you may just like torturing people that are deemed to be our enemy.

Once "Recent" Reader

July 26th, 2010
4:36 pm

No more Progressives . . . We is the USA. You may believe you are hardcore USA, more so than liberals, democrats, progressives . . . .etc. I don’t make that claim, I am just one citizen of the USA. Sort of like We the People . . in order to stand a more perfect union . … No matter what our differences of opinion . . .if you are a US Citizen then WE both have that much in common.

neo-Carlinist

July 26th, 2010
4:41 pm

NMP, thanks for confirming the info I have picked up over the years. as I see it, employing ROK Rangers to do some ad hoc interrogations is no different than sending a suspect to Jordan, or Egypt, or Pakistan for “questioning”. at some point you just have to say, “what the heck, let’s just do this all at GITMO because if/when we get caught, it isn’t really gonna matter, and we’ll save a few bucks (last sentence was a joke). as far as Obama being a “King” I think he’s more of a Court Jester (as were Bush and Clinton). the POTUS is neither King (corporate owners), nor henchman (lobbyists). nope, our Chief Executive is a mere entertainer, who needs to keep the King “entertained” or it’s one and done.

Once "Recent" Reader

July 26th, 2010
4:45 pm

No more Progressives . . . . you ask how many lives does the Higher Moral Ground save. I don’t know the answer to that. I have read Sun Tzu and also other military/political theorists who strongly believe in his Art of War tenet that the great General retains the moral high ground. For immediate purposes . . . .torture may save lives . . .if it was mine . .I’d be eternally grateful. However, the long term ramifications of lessening one’s moral beliefs for expediency (potential) can be much more damaging.

Once "Recent" Reader

July 26th, 2010
5:01 pm

No More Progressives . . .you indicated I did not know what I was talking about when I said it is the duty of US Soldiers to disobey illegal or immoral rules. This was the result of the German Soldiers/SS et al claiming the were just following orders at WWII trials. This lead to many countries clarifying a soldier’s duty. This is something I just found on-line . . .but there are many more:

“At the luncheon of the National Press Club on Feb. 17, 2006, the chairman of the Joint Chiefs of Staff, Gen. Peter Pace, was asked by his interviewer, John Donnelly: “Should people in the U.S. military disobey orders that they believe are illegal?” Pace’s response:

“It is the absolute responsibility of everybody in uniform to disobey an order that is either illegal or immoral.”

You indicated I “don’t have a bloody clue what I’m talking about”. . . . . .which suprised me quite a bit. Although I don’t agree with most of your opinions . . . yes opinions! I did think you were rationally arguing your point. I’m suprised you believe that US Soldiers must follow all orders . .. be they Illegal and Immoral. That is NOT true . . . although we all know what some think as immoral . . others might think as just fine.

No More Progressives!

July 26th, 2010
5:41 pm

“It is the absolute responsibility of everybody in uniform to disobey an order that is either illegal or immoral.”

The United States Mililtary is not a platform for you to display your version anything political. The guy next to you is depending on you to do your job, lest you both get killed. If you think anything else, you have no business being a Boy Scout, much less in charge of anything military.

When you signed up (remember, we’re 100% voluntary) you took an oath. Liberals don’t believe in oaths. They believe in “living, breathing” documents (Al Gore’s personal Constitution) that change whenever & where ever they want.

Like Jack Nicholson said, “I don’t think you can handle it.”

Off to Starbucks with you; wear a clean Che Guevera tee-shirt, and you & your buddies can compare your new ear-rings.

Once "Recent" Reader

July 26th, 2010
11:24 pm

No More Progressives . . ..do you think I’m making up that it is the duty of an American soldier to disobey an illegal or even immoral law. No doubt, the immoral part is probably a bit more tricky to determine . . but this is, and has been the credo, and even more so since WWII. Please do me a favor and ask any military person you know or look it up more thoroughly. This was firmly implanted in many Western Countries military code after WWII. SS Totenkampf troops that went in and slaughtered civilians on the Eastern Front all claimed they were only following orders. So did the SS upper echelon too . . . .blaming Himmler and Hitler. To ensure such a Legal Defense could not be applied in the future the code of US Soldiers having a duty to NOT obey orders that are Illegal or Immoral come into play. If you were a soldier and your Commander told you to go beat the heck out of a captured and subdued civilian they thought might be a terrorist . . ..if you obey, you as well as the Commander would be guilty. Please go and ask any soldiers you know about this specific “duty”. Did you not believe the Chairman of the Joint Chief of Staff’s quote (Gen Peter Pace) from 2006???? This was under the Bush Admin. You seem to think this would cause anarchy in the Military. Well it has not been a problem up to this point, as our Officers and Soldiers have been trained extremely well to do the right thing. If a soldier is giving the order to torture somebody and they did not follow it . . . . I doubt very much the officer would take it any farther!!!

Once "Recent" Reader

July 26th, 2010
11:32 pm

No More Progressives . . . .I continued to read your message a little more clearly. It used to really bother me when posters believe they know a person well because they have a different opinion on a topic. I also noticed on political blogs that it is much more likely those on the far Right are much more prone to drop to generic and general name calling. Everyone who disagrees with them is a Pinko, Socialist, Commie, Uber Liberal, . . .or as you indicate “Che Guevara tee shirt, ear ring wearing, Starbuck drinking buddies. Well, I used to see Che Guevara t-shirts all the time, didn’t know who he was for a long time, and still don’t really know his story. Never had an ear-ring, no tatoos, like Dunkin Donuts, voted for Reagan and Bush (the 1st), just as likely to vote for bills on ballots that the Republicans like as I am for those supported by Democrats, would prefer a Govt surplus over a deficit. Those who can no longer debate resort to name calling! It’s even worse when they get the name-calling wrong.

Once "Recent" Reader

July 26th, 2010
11:34 pm

No More Progressives . . .what I always wondered is if Conservatives really hate Progressives . . . .would they prefere “Regressives”? Just a thought . . ..

Once "Recent" Reader

July 26th, 2010
11:53 pm

One more thing No More Progressives (you are quite fun . . .and easy to debate with) . . . .That quote “It is the absolute responsibility of everybody in uniform to disobey an order that is either illegal or immoral.” was not my quote, not my words. Did you not even read the post??

That was the Quote of the Chairman of the Joint Chief of Staffs, General Peter Pace in 2006 . . . when GW Bush was President. So either you are trying to twist words, which is not a totally uncommon activity of the far right, or you simply do not read and decide to shoot first. That would equate to not illegal, but potentially “immoral” posting:)

No More Progressives!

July 27th, 2010
8:16 am

So, who is Peter Pace and why was he fired?

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389×1071746

Seems that your unimpeachable source was fired……..perhaps for “not following orders.”

Jack

July 27th, 2010
3:32 pm

I reckon Barr would give an icecream cone to a terrorist he was questioning.

Once "Recent" Reader

July 27th, 2010
4:23 pm

Jeesh No More Progressive . … .that was just one quote I found. I picked that one as he was the Chairman of Joint Chiefs of Staff during Bush’s tenor. I did not read your article yet, but definitely will. I did not pick him because I believed he was Liberal/Conservative .. ..and only saw the transcript of the question/answer session. Note: The military should not be partisan, and what was stated about it being the “duty of every officer/soldier to disobey an Illegal or Immoral Order has long been in place, and again . . I’m suprised you didn’t know this. Did you actually research further into this or ask anyone who was/is in the military????? I’m sure they will tell you this is what they are trained to do, and it is part of their code of hornor.

Once "Recent" Reader

July 27th, 2010
4:29 pm

No More Progressives . . .I just read the article that you hyper-linked and some of the bloggers postings underneath. I don’t get what you are saying about him . . . .and what does it have to do with his absolutely correct Military Quote that “It is the duty of a soldier to disobey an illegal or immoral order”. If I read correctly looks like the Dems had him removed and that he was “Rumsfeld’s Parrot”. Again please tell me what you have against this guy and why that would make his statement about illegal/immoral orders inaccurate???? My post had a direct quote confirming my earlier post that you seemed to be calling me an idiot for writing. Yours link doesn’t discount this statement. I’ll go and try and find more for you if you need further validation.

Once "Recent" Reader

July 27th, 2010
4:48 pm

No More Progressive . . . .Just been reading Articles 89 – 92. References clearly made about following “Lawful Orders”. Moral orders does is not specifically mentioned. Lots of quotes found from soldiers indicating in basic training that they are taught to not follow illegal or immoral orders. As I said yesterday . . . .immoral definitely would be the gray area of the two . . .as different soldiers could have different morality scales. However, I also mentioned that the USA does a great job training officers and we do have a tough Rules of Engagement Code . .. .so there probably are only rare cases where that would come into play – as we have great officers.