Well rather than drift into fiction, Obey and I had a little discussion and I am delving into the Office of Legal Counsel today. Well after a brief scanning of the material from Wiki to Emptywheel (introduced to me by TheraP and her countless commenters lately) and back to some previous blogs here goes.

There is a Constitutional Amendment relevant here:

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Originally this Amendment only applied to Federal Action but per the Fourteenth Amendment Due Process Clause, it now applies to any government action.

Where to begin? According to Emptywheel there were several memos published by the OLC beginning in late 2001:

November 20, 2001: John Yoo to Alberto Gonzales, on "War Crimes Act, Hague Convention, Geneva Conventions, federal criminal code, and detainee treatment"

January 11, 2002: John Yoo to Alberto Gonzales, on the Geneva Conventions

January 14, 2002: John Yoo to William Taft, on prosecution under the War Crimes Act for conduct against al Qaeda

January 22, 2002: Jay Bybee and John Yoo to Alberto Gonzales, concluding the Geneva Conventions do not apply to al Qaeda

January 24, 2002: John Yoo to Alberto Gonzales, on the Geneva Conventions

January 24, 2002: John Yoo to Larry Thompson, on the application of international law to the US.

January 26, 2002: John Yoo to Larry Thompson, on the Geneva Conventions

I found some other memos at http://www.usdoj.gov/opa/documents/memostatusolcopinions01152009.pdf We do not have all the memos yet. Other memos after August 1, 2002 can be had here http://www.aclu.org/safefree/general/olc_memos.html. Some are not in the public sphere so to speak. But we do have a fifty-page memo issued by the OLC dated August 1, 2002 entitled: Memorandum for Alberto Gonzales, Counsel to the President Re: Standards of Conduct for Interrogation under 18 U.S.C. Sections  2340-2340A. I would like to center on this epic journey.

Now before I get into this 'Bybee Memo" as they like to describe it, we learn a couple of things right from the get-go. First the OLC is headed by Bybee, and the memo is addressed to the Counsel to the President (Gonzo).  Second, there appears to be a need to recognize that there are standards for interrogation.  Pretty good huh? I mean it is not like we are starting with a blank slate here; I mean we have standards for this type of stuff.

Certain important issues were supposed to be determined by this combined effort by OLC (headed by Bybee) in this great brief. You see, everybody seemed to already know that it was against the law to torture people in the United States. Whew!! Boy that gives one pause to exhale, huh?

So some of our geniuses who were running the country at the time decided it might be a good idea to take detainees elsewhere, outside the United States and maybe they could get away with things in those locations that they could not get away with here. You might be surprised to hear that GTMO is not part of the U.S. I am sure Fidel is relieved. And of course Abu Ghraibi is not either. Another issue might relate to those 'detainees'. (You know language is so important. 'Accused' evidently does not work because OJ and Madoff were accused. 'Defendant' gives you some idea that the individual is a party in some criminal proceeding and since nobody has been charged with a crime, well? What's a mother to do? But 'detainee' has a real ring to it, does it not? I mean, I might be detained by the police if it appears that I was a witness to an accident or a crime.  You know

Stay, just a little bit longer

Oh wont you stayyyyyy,

Just a little bit more, dodododododododo (thanks to Valee)

Detainee. Kind of like a refugee, ya know? It is almost like we are helping a detainee. Do you not think? Giving them housing, and feeding them and asking them to be of help while we sort things out. Oh well.)

The other issue with detainees, is what if we decide to give the detainee a vacation of sorts. Like Turkey or Syria or some other great historic place?  I mean what those governments do with our detainees, who is to say?

But here is the problem. Sections 2340-2340 makes it illegal for Americans to torture people outside of the United States under 'color of law'.  That is, our soldiers, our civilian employees cannot torture people outside of the United States and basically the problem is that if you do violate 2340-2340A you could be fined and sentenced to up to twenty years in prison. So you do not wish to be naughty and get caught screwin' with this statute.

And besides the 2340 problem (kind of like WD40, huh?) there seems to be problems with certain treaties we signed a while back like those known as the Geneva Conventions. Like the Federal Statutes, the Conventions outlaw torture also by our government or 'under color of law'.

Here goes: As we understand it, the question has arisen in the context of the conduct of interrogations outside of the U.S. We conclude that Section 2340 proscribes acts inflicting and that are specifically intended to inflict severe pain and suffering, whether mental or physical.  Thos acts must be of an extreme nature to rise to the level of torture within the meaning of ..(the statute)

We further conclude that certain acts may be cruel, inhumane and degrading but still not produce pain and suffering...as proscribed ...(by statute)

(But physical pain is the same as) pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death. Pure mental pain or suffering must be of a significant duration of months or even years.

 

Finally, OLC concludes that even if the statute is breached the torturer may be exculpated on the basis of necessity or self defense.

So at least the OLC decided that Section 2340 applies. I feel better. Don't you? But you can see, even without going through the fifty pages that we will ultimately be faced with the issue: It depends upon what the meaning of 'is' is.

First it must be determined that the torture inflicted severe pain and suffering whether physical or mental.  But how are we to determine what constitutes severe pain and suffering from a physical standpoint. Well, did the guy lose an organ. I mean that is a good test.

I mean, if the guy ends up losing a lung or a kidney...hey we just went too far.

Or, if there has been an impairment of a bodily function. I mean if the poor guy shits in a bag following his 'detention' something went awry.

Death, now there is a clear boundary.  I mean, if you actually killed the guy, well gees, I mean the statute has been breached.

But wait a gosh darn minute. I mean, if the torturer did not mean to do it. If the torturer had no intent to kill the arab bastard, well, mistakes are made sometimes. And if there has been no intent to do these things, well, I mean 'shit happens'!

The psychological issues are really not addressed. I mean in the main body psychological issues are discussed but its gobbledygook. I mean, TheraP has already laid out problems with the professional whores hired by the government--because the real psychologists quit--and how hired guns tend to defend the turf of the payor.  So the memo addresses only the issue of duration with regard to psychological harm. I aint touchin that. No need. Its ridiculous.

Somehow, during the reading of this memo and the articles, the picture of Senator McCain coming back from Viet Nam keeps haunting me.  Those dirty commies. I wonder if McCain lost an organ? He obviously did not die. And what was the duration of his psychological harm after being held without charges for years upon years?  I know he went through a divorce following his captivity.

Now there is an issue that attorneys should be aware of in this process of creating memos relating to any issue of consequence. Remember in elementary school where the teacher has the student in the front row on the right whisper to his or her classmate some fact. And then the second classmate whispers  the fact to he person to her left and so on and so on. Until the last student is asked to stand and repeat the 'message'. Well the message as delivered by the last student is not the one delivered by the first student.

Empty wheel discusses this by noting Bybee's description of proper waterboarding:

By: emptywheel Tuesday April 21, 20098:11 pm

0 diggs  digg it

Finally, you would like to use a technique called the "waterboard" in this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of"suffocation and incipient panic," i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout.

Now, as SASC describes it, the JPRA document didn't describe waterboarding as it used to be done in Navy training. 

JPRA's description of the waterboarding technique provided in that first attachment was inconsistent in key respects from the U.S. Navy SERE school's description of waterboarding. According to the Navy SERE school's operating instructions, for example, while administering the technique, the Navy limited the amount of water poured on a student's face to two pints. However, the JPRA attachment said that "up to 1.5 gallons of water" may be poured onto a "subject's face." While the Navy's operating instructions dictated that "[n]o effort will be made to direct the stream of water into the student's nostrils or mouth," the description provided by JPRA contained no such limitation for subjects ofthe technique. While the Navy limited the use ofthe cloth on a student's face to twenty seconds, the JPRA's description said only that the cloth should remain in place for a "short period of time." And while the Navy restricted anyone from placing pressure on the chest or stomach during the administration of this technique, JPRA's description included no such limitation for subjects of the technique. [my emphasis]

In other words, JPRA was advising waterboarding to be used in torture to use six times the amount of water as that used in training, and JPRA eliminated the 20 second limit on waterboarding.

I mean, sometimes stuff gets lost in translation.

The next issue relates to the pride that these people at OLC had in their work. Take Addington. He has testified as to his part in these memos. Basically, he is not sure what part he may or may have had in the creation of these memos.

By: emptywheel Saturday May 2, 20091:24 pm

When I read the transcript from the House Judiciary Committee's Assholes Who Torture hearing after the torture memos got released, one thing became clear. Addington was hiding his involvement with the Bybee Two memo (about techniques) by answering questions only about Bybee One.

Twice during the hearing, David Addington answered a question about the  Bybee One memo (abstract authorization for torture--which had been declassified long before this hearing), but made sure to clarify in the record that his answer pertained specifically to that memo. This suggests his answers may have been dramatically different had he been asked about the Bybee Two memo (concrete techniques--the one released last month). If I'm right, it suggests that Addington discussed the Bybee Two memo on his September 25, 2002 field trip to Gitmo with John Yoo, Jim Haynes, and John Rizzo (and others). 

And I always thought old Addington was a stand-up guy. Go ahead and read his responses to the committee's inquiries.  Jesus! (Blesses himself)  See, there are so many memos created on so many dates, nobody remembers anything.  Listening to  Addington is like listening to an ANGRY Gonzo:

Ms. WASSERMAN SCHULTZ. On any of the trips, did you discuss interrogation methods that were directly referenced in the memo that we have been discussing here for this hearing?

Mr. ADDINGTON. I am not sure I remember this memo having methods discussed in it, frankly. [my emphasis]

So Wasserman Schultz asks more generally about whether Addington recommended methods, which puts Addington into full Gonzolesque "I don't recall" mode.

Ms. WASSERMAN SCHULTZ. Did you discuss specific types of interrogation methods that interrogators should use while at Guantanamo Bay on the detainees?

Mr. ADDINGTON. I don't recall doing that, no.

Ms. WASSERMAN SCHULTZ. That means you didn't or you don't recall doing it?

Mr. ADDINGTON. It means I don't recall doing it, as I said.

So how eskewed were these attorneys in their approach to their positions at OLC?

Well today at The Daily Beast, Scott Horton has this to say:

The Justice Department's Office of Professional Responsibility has completed a 220-page report looking into possible ethics violations by Jay S. Bybee, John C. Yoo, and Steven G. Bradbury--the three principal authors of the Bush administration's legal memoranda that gave a green light to the use of classic torture techniques such as waterboarding, sleep deprivation of up to 11 days, hypothermia, and "walling," (slamming a prisoner's head against a wall). The completed report was circulated to Bybee, Yoo, and Bradbury for comment, and was also provided to CIA Acting General Counsel John Rizzo, the addressee of some of the memos. According to one Justice source who has read the report, its conclusions are "devastating" and raise grave doubts about the memo writers' claims to have given the issues presented their best legal analysis. The report sharply criticizes the quality of the legal work contained in the memoranda, and suggests that the lawyers who wrote these memos failed to exercise the independent judgment and professionalism that they owed their clients. The report suggests that some of the memos may have been created as part of an after-the-fact attempt to provide legal cover for conduct that was recognized as potentially criminal. The report also recommends that at least two of the memo writers be referred to bar associations for disciplinary measures--which might include a reprimand, suspension, or disbarment. Bar disciplinary panels rarely mete out severe sanctions to lawyers for mistakes made in connection with legal opinions, but they also tend to give deference to conclusions made by the Justice Department when it is reviewing its own personnel.

If the Justice Department's own internal probe concludes that the memos were not created in good faith, then the last roadblock to a criminal investigation would be removed.

The New York Times reports that the OPR report recommends against criminal charges, but Justice sources with whom I spoke disputed the accuracy of the Times' report on this point. They noted that while it might be literally true that the OPR report did not recommend criminal action, that follows from OPR's jurisdiction, which covers only ethics matters and a fairly narrow area of criminal law directly associated with professional ethics. The ethics office would therefore not be expected to make recommendations about criminal charges. They note that the OPR report's factual conclusions and recommendations will be passed to Attorney General Eric Holder and will be weighed by him in connection with pending requests for a criminal investigation. At present, Holder has three options: to assign the matter to a U.S. attorney, to appoint a special counsel (as Congressmen John Conyers and Jerrold Nadler and Senators Patrick Leahy and Carl Levin have requested), or to decide that no criminal probe is appropriate. If Holder elects to open a criminal investigation, then the OPR report and underlying investigative materials would be provided to the prosecutor handling the matter. The prosecutor would be free to pursue the case as appropriate--possibly including the development of criminal charges involving the OLC lawyers. If the factual account is as described, it will add to the pressure on Holder to appoint a special counsel to address the matter.

Well, I think that by now, if the reader is still with me, you can see how this entire matter will be written in 500 page summaries by people of note. I am not a lawyer. I have not been an attorney for ten years. Nor do I wish to be.

But in a previous blog I noted that you could find a decision written by a

Federal District Court

over the last 200 years that could be used to support any position you would like to defend. On any subject. And if you read the August 1, 2002 memo, you will find FDC's all over the place.

In another blog that I cannot find right now, I also noted that Yoo once declared in a memo that the Eighth Amendment proscriptions did not apply to individuals who have not been charged with a crime. Which is ridiculous on its face and would merit an 'F' in any nationally recognized law school.

I am very interested in reading the OPR report that has been touted for at least two months.

THE END