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.