Revolution #164, May 17, 2009

The Memos:
A “Golden Shield” For Depraved Brutality

Those issuing the Bush torture memos included then White House Office of Legal Council (OLC) head Jay S. Bybee. Bybee was later appointed by George W. Bush to a high-level federal appeals court judgeship, a position he holds today.

Jack Goldsmith, who succeeded Bybee as head of the OLC, is himself basically a supporter of much of the political rationale behind the so-called “war on terror.” He wrote a book, The Terror Presidency, which argues that the government should have significantly expanded power to pursue the “war on terror.” Yet even Goldsmith was taken aback by the torture memos.

Here is how Goldsmith characterized how these memos were understood by the CIA: “Violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under the color of presidential authority.” And, Goldsmith continued, CIA “interrogators and their supervisors,” saw these findings as “a ‘golden shield’ as one CIA official later called it, that provided enormous comfort” (cited in Justice at War,by David Cole).

The memos issued by the White House Office of Legal Council not only provided the “golden shield” for torturers, they provided specific, detailed instructions on how to carry out torture in ways that applied a veneer of civilized legality to depraved brutality.

The May 10, 2005 memo, by Steven Bradbury (another OLC attorney) notes that the CIA’s Office of Medical Services (psychiatrists and doctors who violate the most basic ethics of medical professionals by facilitating torture), were nearby to perform a tracheotomy if during waterboarding the suspect is approaching death. He wrote approvingly that “the necessary emergency medical equipment is always present—although not visible to the detainee—during any application of the waterboard.”

The Bybee torture memo, issued August 1, 2002, is a comprehensive legal justification and guidebook for torture, systematically explaining why a wide range of international legal precedents do not apply to CIA torturers, and/or how to fine-tune torture techniques to circumvent existing U.S. and international law.

For example, Bybee’s memo examines in detail a case in which a U.S. court found Serbian torturers liable, under the federal Torture Victim Protection Act (TVPA). The acts that the U.S. court ruled constituted torture included beatings, hanging the victims upside down, and death threats in the form of “Russian roulette,” along with degrading treatment (Mehinovic v. Vuckovic, 2002).

In this particular instance (as throughout his memo), Bybee does three things:

1) He simply dismisses some of the findings in the federal court ruling in the case. Bybee writes, “To the extent the opinion [the court ruling against the Serbian torturers] can be read to endorse the view that this single act and the attendant pain, considered in isolation, rose to the level of ‘severe pain or suffering,’ we would disagree with such a view based on our interpretation of the criminal statute.”

2) He identifies specific Serbian torture techniques that the court ruled illegal, like hitting a victim with a metal pipe, or pulling out the victim’s tooth, in order to essentially instruct torturers: don’t do it this way, do it another way.

3) Bybee’s memo assures CIA torturers that their acts will not be considered torture under this precedent: “A broad view of this case, and of the TVPA cases more generally, shows that only acts of an extreme nature have been redressed under the TVPA’s civil remedy for torture.”

In this way, the torture memos both provided a “golden shield” for torture, and a how-to guide for torturers.

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