Exactly ten years ago, on August 1, 2002, Jay S. Bybee, who, at the time, was the Assistant Attorney General in the Justice Department’s Office of Legal Counsel, signed two memos (see here and here) that will forever be known as the “torture memos.” Also known as the Bybee memos, because of Bybee’s signature on them, they were in fact mainly written by John Yoo, a law professor at UC Berkeley, who worked as a lawyer in the OLC from 2001 to 2003.
Although the OLC is supposed to provide impartial legal advice to the executive branch, Yoo was not interested in being impartial. As one of six lawyers close to Vice President Dick Cheney — along with David Addington, Cheney’s Legal Counsel, White House Counsel Alberto Gonzales, White House Deputy Counsel Tim Flanigan, William J. Haynes II, the Pentagon’s General Counsel, and his deputy, Daniel Dell’Orto — he played a significant role in formulating the notion that, in the Bush administration’s “war on terror,” prisoners could be held as “enemy combatants” without the traditional protections of the Geneva Conventions; in other words, without any rights whatsoever.
This position was confirmed in an executive order issued by President Bush on February 7, 2002, and was not officially challenged until the Supreme Court reminded the government, in Hamdan v. Rumsfeld in June 2006, that Common Article 3 of the Geneva Conventions, which prohibits torture and “outrages upon personal dignity, in particular humiliating and degrading treatment,” applies to all prisoners seized in wartime.
What was never officially mentioned, and is still unknown to many US citizens, is that the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Ronald Reagan signed in 1988, confirms that there are never, ever any excuses for the use of torture. Article 2.2 states, unambiguously, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
In the “torture memos,” Yoo — with Bybee’s approval — attempted, cynically, to redefine torture so that it could be used on Abu Zubaydah, the “high-value detainee” seized in a house raid in Faisalabad, Pakistan on March 28, 2002, claiming that torture was the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.” Compounding his arrogance, it was later discovered that he had lifted his definitions from a Medicare benefits statute and other health care provisions.
Yoo — and Bybee — also approved ten techniques for use on Abu Zubaydah, including waterboarding, an ancient torture technique, known as tortura del agua to the more honest torturers of the Spanish Inquisition, which involves controlled drowning. As a result, Zubaydah was waterboarded 83 times, and another “high-value detainee,” Khalid Sheikh Mohammed, was waterboarded 183 times.
Unforgivably, Yoo and Bybee have never been prosecuted for their cynical decision to claim that torture is not torture — and they are joined in this lack of accountability by all the other torturers of the Bush administration, including George W. Bush, Dick Cheney, Donald Rumsfeld, David Addington, Alberto Gonzales, Tim Flanigan, William J. Haynes II and Daniel Dell’Orto, as well as Douglas Feith, the undersecretary of defense for policy, who was included in a Spanish anti-torture lawsuit as part of the “Bush Six,” along with Addington, Bybee, Gonzales, Haynes and Yoo.
In Yoo and Bybee’s case, a four-year internal investigation into their ethical conduct concluded in 2009 that they were guilty of “professional misconduct.” This was a conclusion that would have led to professional sanctions, and that may have opened an entire can of worms for Yoo, the law professor, and Bybee, who, by then, was a judge on the Ninth Circuit Court of Appeals. However, a notorious DoJ fixer, David Margolis, was allowed — or encouraged — to overwrite the report’s conclusions, deciding instead that the two men had only exercised “poor judgment,” a decision that carried no possibility of any sanctions or accountability whatsoever, as I explained in an article at the time.
The decision to allow Margolis to allow Yoo and Bybee to evade accountability is typical of the Obama administration, which has refused to engage with any attempt — internally or internationally — to prosecute those involved in the Bush administration’s torture program, even though crimes were undeniably committed, as I explained in an article a month after Margolis’s whitewash.
As a result of this refusal to hold anyone accountable for torture, America’s entire belief in itself as a country founded on the rule of law has been poisoned, and the only hope for those demanding accountability appears to be the possibility that other countries will do what senior US officials have refused to do.
In Spain, for example, two cases, including the case mentioned above, against the “Bush Six,” are still ongoing, and in Poland an investigation into a secret CIA torture prison that existed from 2002 to 2003 is also ongoing, with charges already leveled against the country’s former spy chief Zbigniew Siemiatkowski.
Time will tell if these attempts will eventually ensnare the architects of America’s descent into a nation that officially embraced torture, but it is important that anniversaries like this are remembered, even if amnesia has stricken almost the whole of the mainstream media.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed — and I can also be found on Facebook, Twitter, Digg, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.
On Facebook, when I posted this, I noted:
I wrote about this on the anniversary, three days ago, but this is a more detailed article. Please share, like and circulate if you believe that torturers must be held to account, even if they include the President of the United States, the Vice President and some of their closest advisers.
Kathryn M Blackwood wrote:
Will do, Andy. Thank you.
Sana Awan wrote:
Thank you Andy for bringing this to light. The world needs to know.Why is the United Nations and the world community silent over this blatant violation of basic human rights?
George Kenneth Berger wrote:
I shared this, with some explanation and this link to a summary by McCoy. It’s a bit old, but useful: http://www.hnn.us/articles/32497.html
Thanks, Kathryn, Sana and George. Good to hear from you all. Thanks for the link to Alfred McCoy, George, whose work is so important.
And Sana, you ask a very good question indeed. If I can remember the 10th anniversary of the “torture memos,” why not the UN and other international bodies?
Good job. Andy – another light on the issue that the US chooses to ignore – Instead, we pay attention to who deserves a gold medal and who got “robbed;” Who is dating whom in the world of Hollywood hype; What is the latest “gotta have” toy got released last week.
Unfortunately, the US has created a reputation of war criminality. That will only change when WE, the PEOPLE, truly change – That will not happen until we right the wrongs committed over decades of abuse culminating in THAT 8 years of crime against humanity called the Bush Years. The Torture Memos etched it in stone – Sanctified our corruption.
Even with Obama’s “dial back” on torture and the “War On Terror” that filled Guantanamo, he aggravates and exacerbates it all with his own criminality as he “drones” his way into other countries to assassinate people on a prejudiced “kill list” then tries to destroy the whistle-blowers calling us out on our hypocrisy (from Manning to Assange)
Yes indeed, Jan, which is why those of us who are awake must remain so, and also try to awaken our many slumbering fellow citizens, in the US, the UK and elsewhere. The complacency, the indifference, the ignorance — as well as the aggression from those who have bought into the macho lies about violence and torture — are sometimes overwhelming, but we must keep telling the truth. I am, to be honest, appalled that this particular 10th anniversary has received so little attention, when it really was a big deal …
Cannot miss a rare opportunity to post a comment, when this section of your blog miraculously materialises once in an increasingly blue moon … !
10 years already for one more sad anniversary. Guantanamo is heading for its 12th, Afghanistan for its 11th in just two months time (and 33rd since the Russian invasion …), Iraq its 10th next spring, Shaker Aamer still did not get any nearer release, neither did callously deceived Omar Khadr and all the other ‘cleared for release’ torture victims in Guantanamo.
All of which amid growing indifference …
Thanks Andy, for keeping the flame alive.
To find out who is in a terrorist group using torture is pointless; if the person is guilty they still won’t talk or they’ll lie, and if they are innocent they will just say what the torturer wants to hear.
Yes, exactly, Thomas. Thank you for that succinct rebuttal of the “ticking time bomb” theory so beloved of supposed intellectuals like Alan Dershowitz, and torture-loving officials and lawyers of the Bush administration.
Thanks, Anna. Great to hear from you, as ever. Sorry that it’s so hard for you to comment. I’d love to hear from you more often.
Sana Awan wrote:
Also, information extracted through torture should be fundamentally unreliable. how can coerced testimony be accepted in courts?
That’s the problem for the US authorities, Sana – how to prosecute any of these men. Obama’s solution has been either to try trials by military commission at Guantanamo, in the hope that evidence of torture can be hidden, or to decide that some men (46 of the remaining 168) must be held forever, without charge or trial, because there is insufficient evidence to try them – in other words, there is no actual evidence; just dubious information in which torture or coercion were involved. It’s horrible, isn’t it?
Sana Awan wrote:
Yes, it’s horrible. That’s prejudice in the extreme..these men at least deserve a fair trial. What happened to “innocent until proven guilty”? The US is treating James Holmes, the Colorado shooter, as suspect still (and not a criminal), even though there’s no doubt it was pre-meditated murder of all those innocent people, and his booby-trapped apartment is all the evidence that’s needed to prosecute him. So unfair.
Yes indeed. I still can’t imagine the fortitude required to live with the knowledge that you’re being held as a scapegoat, as is the case with so many of the men in Guantanamo.
I was tortured for almost 3 years by the FBI and their friends only
because 85 years old man, Roland Sibens(chicago) convinced them that I
am a terrorist. I was tortured for working on my prosthetic legs in
the basement. I done absolutely nothing illegal or wrong. They thought
that in theory it is possible to hide bomb in them. They saw an
opportunity to get famous, so they were trying to torture me till I
sign their insane story. They tortured me using more than 100
different torturing methods and trust to me waterboarding is not how
they torture nowadays. I dont know where to find justice.
I think that after 9/11 things got out of control. Freedom fighters
became tyrants. In 1945, most Germans had an opportunity to learn about Nazis death
camps. I hope that one day American citizens will get chance to learn about people
like me, who were tortured with no reason for years.
Thank you for your comments, Ivan. I’m sorry to hear about your suffering.
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