Torture and Impunity

John Ehrenberg and J. Patrice McSherry are Professors of Political Science at Long Island University, Brooklyn Campus.  Jose Ramon Sanchez is Associate Professor of Political Science at Long Island University. Caroleen Marji Sayej is Assistant Professor of Government and International Relations at Connecticut College. Together they wrote The Iraq Papers, which offers a compelling documentary narrative and interpretation of this momentous conflict. In the post below we learn about last Friday’s Department of Justice report.

On February 19, 2010, two Bush administration lawyers, former Assistant Attorney General Jay Bybee and his deputy John Yoo, were cleared of professional misconduct charges by the Justice Department. As senior advisors in the Office of Legal Counsel–the executive office that provides authoritative legal advice to the president and the executive branch–they wrote legal opinions later known as “the torture memos” in the early years of the Bush administration. The opinions essentially redefined and authorized torture through contorted readings of the Convention Against Torture, domestic anti-torture statutes, and the Geneva Conventions. Yoo wrote in one 2003 memo to the Pentagon: “…as long as the interrogators do not intend to murder the detainee, they will not have run afoul of section 113(a)(l)…the intent to torture appears to be the most relevant…the interrogator would have to intend to cause other severe physical pain or suffering or to cause prolonged mental harm. Absent such intent, the interrogator would not have committed assault with intent to torture…Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be ‘severe.’ The statute does not, however, define the term ‘severe.’”

Yoo and Bybee also argued that the president’s powers were virtually unlimited in a time of war and that Congress, the courts, or established law could not check or balance him—even if he decided to use torture. Indeed, when a law professor asked John Yoo whether the president could legally “crush the testicles of a person’s child,” Yoo responded that no treaty forbid it and that it depended on “why the President thinks he needs to do that.” Even though ethics investigators in the Justice Department’s Office of Professional Responsibility had called for disciplinary action against Bybee and Yoo—including possible disbarment–the Deputy Attorney General rejected their recommendations.

In 2001 and 2002 the Vice President’s Office and the CIA were pushing for legal opinions that would protect agents from culpability for methods such as near-suffocation and drowning of detainees, putting them in painful stress positions, subjecting them to weeks of sleep deprivation, slamming them against walls, and shutting them in claustrophobic boxes. Consider the cold, clinical language of this December 2004 CIA fax to the Office of Legal Counsel, titled “Background Paper on CIA’s Combined Use of Interrogation Techniques”: “Current OMS [the CIA’s Office of Medical Services] guidance on the duration of cramped confinement limits confinement in the large box to no more than 8 hours at a time for no more than 18 hours a day, and confinement in the small box to 2 hours…Session One. The HVD [High-Value Detainee] is brought into the interrogation room, and under the direction of the interrogators, stripped of his clothes and placed into shackles…HVD is placed standing with his back to the walling wall. The HVD remains hooded…Interrogators approach the HVD, place the walling collar over his head and around his neck…An HVD may be walled one time to make a point or twenty to thirty times when an interrogator requires a more significant response to a question…” This top-secret memo was declassified in 2009, prompting horrified reactions in this country and worldwide.

Expert interrogators have argued that sadistic methods often result in false confessions and do not provide valuable information. Rather than “keeping us safe,” such methods endanger us and spark new hatreds. They cause catastrophic harm to U.S. values and ideals, to our constitutional system, to international law, and to U.S. standing as a lawful nation in the world. This is not an issue of the past or something we can put behind us, as President Obama wishes. But there are fierce political pressures in Washington to completely shut down the issue of torture.