Torture: Stop Harassing The Lawyers

National Journal

The legions of left-liberal avengers demanding prosecutions of CIA grunts and the entire Bush national security team on charges of illegal torture are likely to be disappointed, for reasons discussed in my September 5 column.

But many still hope to drive from the legal profession the Bush administration lawyers who advised that waterboarding and other brutal interrogation methods were legal.

And Attorney General Eric Holder is endlessly mulling a 200-plus-page draft report recommending (according to news leaks) referral of former Justice Department lawyers Jay Bybee and John Yoo to state bar authorities for disciplinary proceedings.

The Justice Department’s Office of Professional Responsibility presented the draft to Holder’s predecessor, Michael Mukasey, in December after a five-year investigation. It focuses on two lengthy, August 1, 2002, memos that Bybee and Yoo, then his deputy, co-authored. They helped open the door for the CIA to use brutal interrogation techniques by construing very narrowly the 1994 law that makes "torture" a federal crime.

Holder should unambiguously reject this recommendation, as Mukasey reportedly did in a still-unreleased memo before leaving office. Even if these "torture memos" were wrong, the relevant rules clearly provide that the only grounds for the OPR or state bar officials to discipline Bybee or Yoo would be proof that they acted in bad faith by knowingly misstating the law, or were incompetent.

There is nothing remotely like such proof. Nobody who knows Bybee, now a federal Appeals Court judge, or Yoo, a leading scholarly advocate of sweeping presidential war powers who teaches law at the University of California (Berkeley), doubts that they believed in their own interpretation of the anti-torture law.

Nor does the sometimes sloppy reasoning in the two memos prove incompetence. These were highly capable lawyers working under severe time pressure with little guidance from case law, amid pervasive fears that another mass-murder attack might be imminent unless the CIA could force captured terrorists to talk.

I was among many critics who denounced the first of the Bybee-Yoo "torture memos," a general analysis of the anti-torture law and related issues, as deeply flawed when it was leaked in 2004. Soon thereafter, Jack Goldsmith, a Bybee successor as head of the Office of Legal Counsel, repudiated that memo on behalf of the Bush Justice Department, thereby infuriating the White House.


It makes no sense to seek to atone for the nation’s sins by singling out individuals for bar discipline or other punishment.


The most troubling aspect of that first memo was its sweeping and poorly supported claim that the Constitution empowered a wartime president to, in effect, nullify the 1994 law by ordering wholesale use of torture.

Although the White House had requested such an analysis, President Bush never purported to invoke it. For this reason, the second Bybee-Yoo memo was the more important one. Released by President Obama in April, amid widespread denunciations, it approved the legality of 10 specified CIA interrogation techniques. While also somewhat flawed, in my view, this "techniques memo" was more carefully reasoned and more plausible in its legal analysis than most critics and the media have suggested.

Indeed, at least a dozen high-ranking Bush administration lawyers implicitly or explicitly accepted the techniques memo as a correct legal analysis. These included Goldsmith and former Deputy Attorney General James Comey — widely respected figures who repeatedly proved their independence from White House pressure to toe the line.

The record is also clear that leading members of Congress, including Nancy Pelosi (before she became House speaker), raised no legal objections after being briefed in detail about waterboarding and the other interrogation methods that Bybee and Yoo approved.

This is not to deny that these techniques — waterboarding, slamming detainees against walls, confining them in dark boxes, depriving them of sleep for as long as 11 days, and more — are so viscerally horrifying that many of us would call them torture.

But that does not make the memo’s legal analysis indefensible.

First, in passing the anti-torture law, Congress chose quite deliberately not to outlaw all of the "cruel, inhuman, and degrading" treatment that international law forbids and that I (for one) see as torture. Instead, it outlawed as "torture" only the subset of brutalities that are "specifically intended" to cause "severe" physical pain, or mental pain so extreme as to cause "prolonged mental harm."

Bybee and Yoo interpreted these vague terms quite narrowly. But at least two federal Appeals Courts have adopted similarly narrow interpretations of international treaties against torture.

Take the much-criticized Bybee-Yoo argument that physical pain is "severe" only if "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Although "organ failure" was an execrable word choice, the heart of the Bybee-Yoo definition was not so different from the one in a Senate report quoted by the U.S. Court of Appeals for the District of Columbia Circuit in 2002: "A deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering."

Critics including Holder have also assailed Bybee and Yoo for claiming that an interrogator lacks "specific intent" to torture if he has a "good faith belief" that his actions will not inflict severe physical pain or prolonged mental harm — even if they will.

But the U.S. Court of Appeals for the 3rd Circuit adopted something close to this interpretation in a 10-3 decision in June 2008, saying that an official would have "specific intent" to torture only if he knew that severe pain was certain and he also had "the additional deliberate and conscious purpose" of inflicting it.

Second, Bybee and Yoo were entitled to rely on the information provided by the CIA about how it would use the specified techniques and the impact that similar techniques had had on military trainees being taught how to resist interrogation.

Take waterboarding, the most traumatic (and apparently most effective) technique approved by Bybee and Yoo. It is widely seen as a form of torture, and the U.S. prosecuted people for water tortures used by U.S. troops in the Philippines and by the Japanese during World War II.

But those water tortures — such as pouring large amounts of water down a prisoner’s throat and then stomping on his stomach — appear to have been far more painful and harmful than what Bybee and Yoo approved. The CIA had presented detailed evidence that its use of waterboarding would not cause severe physical pain or prolonged mental harm.


A simpler approach would be to offer the nation’s apology to the innocent victims of torture and urge Congress to pay them compensation.


The Bybee-Yoo techniques memo said that the CIA had described "the waterboard" as repeatedly pouring water "in a controlled manner" onto a cloth over the nose and mouth of a bound detainee to produce "the perception of drowning" and panic. The memo said that trained medical personnel would be standing by and that although waterboarding and other techniques could be repeated, the repetition "will not be substantial."

This still seems excruciating. But Bybee and Yoo relied heavily on assurances by their client (the CIA) that in thousands of waterboarding sessions designed to teach military trainees how to resist brutal interrogation, the trainees did not experience substantial physical pain and only a handful had mental health problems attributable to waterboarding.

We now know that some CIA interrogators — especially before 2003 — used waterboarding and other techniques in ways considerably more harsh and prolonged than the limited uses that Bybee and Yoo had approved. The lawyers probably should have warned more firmly against such excesses, but their failure to do so hardly proves bad faith.

Of course, when all is said and done, there is little doubt that some CIA detainees were tortured. This is a stain on our nation’s honor that should never be repeated. But the responsibility was so widely diffused, across such a large number of honorably motivated officials who tried (and sometimes failed) to stay within the law, that it makes no sense to seek to atone for the nation’s sins by singling out individuals for bar discipline or other punishment.

This is especially true when those individuals have already suffered greatly from being trashed as "war criminals," picketed at public appearances, stalked by grandstanding Spanish judges, and otherwise harassed across the country and around the globe.

There are better ways to account for and remedy our sins of torture. The sort of fact-finding "truth commission" that many have advocated could report on what was done and the lessons learned — although it could do more harm than good if such a panel conducted the sort of adversarial hearings that would become a public circus.

A simpler and risk-free approach would be for the president to offer the nation’s apology to the innocent victims of American torture and urge Congress to pay them compensation. Why hasn’t Obama done that?

This article appeared in the Saturday, September 12, 2009 edition of National Journal.