On the 10th Anniversary of Yoo and Bybee’s “Torture Memos,” Col. Morris Davis Reminds Americans About Justice and the Law


Exactly ten years ago, two memos written by John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel, were signed by his immediate boss, Jay S. Bybee. In these two memos, Yoo, also a law professor at UC Berkeley, attempted to redefine torture so that it could be used on Abu Zubaydah, an alleged “high-value detainee” seized in the “war on terror,” even though the US is a signatory to the UN Convention Against Torture, which prohibits the use of torture under any circumstances.

These two memos, generally known as the Bybee memos, but forever known to anyone with a conscience as the “torture memos,” marked the start of an official torture program that will forever be a black mark on America’s reputation — as well as providing cover for torturers worldwide, and turning America into such a dubious and lawless nation that President Obama and his administration have shied away form holding any of their predecessors accountable for their actions, and have swallowed the Bush administration’s rhetoric about a “war on terror” to such an extent that, although torture has been officially repudiated, the administration has presided over a massive increase in the use of unmanned drones to assassinate those regarded as a threat, without any judicial process, and in countries with which the US is not at war, including US citizens.

In an article to follow soon, I will examine this anniversary more closely, but for now I wanted to make sure that I marked it in some manner, having been away at the WOMAD world music festival for most of the run-up to it, and I’m delighted to use the occasion to cross-post an op-ed from the Los Angeles Times written by Col. Morris Davis, the former chief prosecutor of the military commissions at Guantánamo, who resigned five years ago, when he was placed in a chain of command under William J. Haynes II, the Pentagon’s General Counsel, and one of the main drivers of the torture program.

Col. Davis, who is now on the faculty of the Howard University School of Law, is a colleague and a friend, with whom I meet every January to complain about the ongoing existence of Guantánamo in various public forums, and I anticipate that I will be seeing him again in another five months, on the 11th anniversary of the opening of Guantánamo. For now, however, I’m glad that he was sufficiently aware to mark this dark anniversary with an article, when almost the whole of the US mainstream media overlooked it.

Accountability, after all, is still needed for senior officials who knowingly committed crimes that led to the use of torture by US forces.

Consign Bush’s ‘torture memos’ to history
By Morris D. Davis, Los Angeles Times, July 30, 2012

How should we mark the 10th anniversary of the effort by the Bush administration to justify torture? By ensuring it never happens again.

The Bush administration “torture memos” will be 10 years old this week. As the administration developed its interrogation policies, it concealed various forms of torture under the moniker “enhanced interrogation techniques.” It consulted with the Office of Legal Counsel in the Department of Justice on the legality of these techniques, including waterboarding, walling (slamming detainees against walls), forcing detainees into stress positions and subjecting them to sleep deprivation. Ultimately, the OLC provided legal cover for the use of most of these techniques.

On Aug. 1, 2002, in a memo addressed to the general counsel of the CIA, Assistant Atty. Gen. Jay Bybee wrote: “When the waterboard is used, the subject’s body responds as if the subject were drowning … The subject may experience the fear or panic associated with the feeling of drowning.”

I know something about the feeling of drowning. The closest I’ve come to death was more than 20 years ago, while I was white-water rafting in West Virginia with some Air Force friends. As the raft careened through the rapids, two of us were tossed out. As the current pulled us past a large rock that jutted out into the river, it curled down and took me with it. I could see the surface five or six feet above me, but the water pushed me down harder than my legs could push me up. As I struggled to live, I thought about my wife who was pregnant with a child I might never see.

It was as if time slowed down. I experienced 10 minutes worth of thoughts in the minute I was underwater. Finally, my lungs aching, I pushed away from the rock rather than up toward the surface, and seconds later, I popped up, gasping, terrified.

As the CIA memo makes clear, that is the point of waterboarding. “Any reasonable person undergoing this procedure … would feel as if he is drowning … due to the uncontrollable physiological sensation he is experiencing …,” Bybee wrote. “It constitutes a threat of imminent death.” Nonetheless, he concludes that such treatment would not be torture because the harm would not be prolonged.

I suspect that Bybee never fell off a raft into white water, and never came close to death by drowning, because if he had, I feel certain he would have had a very different view of whether it causes prolonged harm.

Past administrations, both Republican and Democratic, had opposed torture, but the Bush administration embraced it by renaming it enhanced interrogation techniques and claiming that it was necessary for our national security. Upon taking office, President Obama issued an executive order halting the use of torture.

Torture is counterproductive. Professional interrogators — Ali Soufan of the FBI, Matthew Alexander of the Air Force and Glenn Carle of the CIA — have said this clearly.

Torture is always illegal. The United States ratified the United Nations Convention Against Torture in 1994, agreeing to abide by the following proscription: “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.”

Torture is also a moral abomination. As the National Religious Campaign Against Torture — made up of member institutions representing followers of the Bahai faith, Hinduism, Christianity, Buddhism, Judaism, Islam, Sikhism and more — attests, it runs contrary to the teachings of all religions and dishonors all faiths. It is an egregious violation of the human rights and dignity of each and every person and results in the degradation of all involved — the victim, perpetrator and policymakers.

“Any reasonable person” understands that the United States engaged in torture during the Bush administration. And yet members of that administration still defend their actions. They argue that the enhanced interrogation techniques they used or authorized were not torture. Referring to the now discredited torture memos, they claim that the Department of Justice verified that these techniques were not criminal acts.

The Senate Intelligence Committee has undertaken an investigation into the CIA’s use of enhanced interrogation techniques allowed by the memos. It is essential that its findings be released to the public so that the American people can know the truth about what was done in their name.

And we should mark the 10th anniversary of the effort by the Bush administration to justify torture, remembering that as a nation founded on religious and moral values, we must work to ensure that U.S. government-sponsored torture never occurs again.

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.

6 Responses

  1. Andy Worthington says...

    On Facebook, William Cooke wrote:

    The fact that Bybee is a judge is disgusting. Both should be indicted for conspiracy to torture.

  2. Andy Worthington says...

    Yes, I agree, William, and the fact that he and Yoo (a law professor at Berkeley since 1993) have escaped justice actually makes all the laws and treaties against the use of torture meaningless. In many ways, although Yoo is the biggest monster, a sadist who appears to relish the idea of torture, Bybee is the more dangerous of the two, an apparently decent man who approved the unapprovable when his job demanded it, instead of walking and blowing the whistle. Here, from April 2009, just after Obama released four torture memos – one of Yoo and Bybee’s and three by Steven G. Bradbury in 2005 – is a story from the Washington Post about Bybee’s “regrets.” Fair enough, but I’m sure many other criminals have had regrets from their prison cells: http://www.washingtonpost.com/wp-dyn/content/article/2009/04/24/AR2009042403888.html

  3. Connie L. Nash says...

    See both http://oneheartforpeace.blogspot.com


    End of July at http://nomorecrusades.blogspot.com

    Be sure to see comments where I posted references and links.

    Thanx for the ongoing dedication to seeking an end to this horrific, unending inhumanity.

  4. Andy Worthington says...

    Thanks, Connie. Good to hear from you, and thanks also for your dedication to bringing this dark and seemingly endless period in US history to an end.

  5. arcticredriver says...

    I can’t remember where I read it, but at least one commentator thought that the Yoo memos were written retroactively, to endorse techniques already in use.

    I read, again I can’t remember where, that readers were mystified by the passage in Yoo’s torture memos, that explicitly endorsed plucking the torture target’s eyes from their head. That commentator wrote that most readers assumed the endorsement of eye plucking was merely hyperbole — not meant to be taken seriously.

    But that comment pointed to Abu Zubaydah’s official Guantanamo ID portrait — where he is wearing a pirate-style eye patch. In contrast the picture of him lying unconscious and wounded in the back of a pickup, at the safehouse where he was captured showed him with two apparently healthy eyes. As I recall that commentator wrote that Abu Zubaydah described losing his eye early in his interrogation. He described being taken for one of his shockingly brutal interrogations, one so brutal he didn’t record memories of it, only to wake up in his cell, with his eye bandaged — because he had lost a perfectly healthy eye during the interrogation.

    If it wasn’t you who wrote of this, maybe is was Jason or Jeffrey?

    I have wondered about this recollection, since then, as if this story had been transmitted by his lawyers, they would have risked getting in trouble for violating their security promise.

    I used to be a big fan of Michael Moore, but I regret his harnessing the claim that Guantanamo captives get excellent health care — when the public record seems to suggest that they get terrible health care. The public record seems to suggest that, in contrast to the claims of DoD spin doctors that proper health care is with-held, at the orders of interrogators, or as a punishment for “non-compliant” behavior.

  6. Andy Worthington says...

    Thanks, arcticredriver. Jason wrote that article about Abu Zubaydah and the loss of his eye, which you are rightly curious about.
    It was published last May, and I cross-posted it here with commentary: http://www.andyworthington.co.uk/2011/05/19/high-value-detainee-abu-zubaydah-blinded-by-the-bush-administration/
    I also believe that the memos were used to justify torture that had already taken place. I really should do a timeline at some point …

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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