The man who orchestrated the legal protection for the torturers of the Bush Administration should not be a Federal judge.
Jay Bybee wrote memos, or oversaw their writing, that drew a line as to what conduct was legal in interrogating terror suspects, and what conduct was not. That line is essential and needs to be drawn. The problem is where Jay Bybee put the line. His work allowed interrogations that went as far a "organ failure" without it being considered torture.
How can someone like that be a lifetime Federal judge? His morals are lacking, his judgement is in absentia and his legal reasoning is suspect.
Impeach Federal Judge Jay Bybee!
Showing posts with label CIA Torture. Show all posts
Showing posts with label CIA Torture. Show all posts
4.19.2009
4.17.2009
The Torture Memos - We Already Knew In 2006 What Was Happening
REPRINT OF BLOG POST FROM 2006:
Let's take a minute to review some very important legal documents in the debate on the Bush Administration's torture policy.
There is the August 1, 2002 memo that sets the standard for "torture" as "inflict[ing] pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The memo goes on to say that the application of "mind-altering substances" to be torture "they must produce an extreme effect" that "rise to the level of 'disrupting profoundly the sense or personality.' " Honestly, is that how your mother raised you, to call organ failure the standard of torture? What about pulling our fingernails? That would not be torture under this definition.
After the public release of this legal analysis, the President withdrew it and ordered another memo to be written. The memo of December 30, 2004 reversed some of the conclusions of the August 1, 2002 memo, which was a good thing. What it did not do was outline exactly what was legal to do within the context of an interrogation.
So what good is that?
The 2004 memo lists many cases describing fact patterns that have not been been ruled as constituting torture in U.S. courts. BUT - just when you think you have an answer the following footnote is inserted:
December 1, 2004 memo from the Office of the Assistant Attorney General, footnote 6
" ... In addition, this memorandum does not address the many other sources of law that may apply, depending on the circumstances, to the detention or interrogation of detainees (for example, the Geneva Conventions; the Uniform Code of Military Justice, 10 U.S.C. 801 et seq.; the Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261-3267; and the War Crimes Act, 18 U.S.C. 2441, among others)." (emphasis added)
The memo only applies to one section of law, the federal criminal prohibition against torture, in other words.
So not only doesn't the 2004 memo set a firm line between legal and illegal activities, it ignores military law and other federal laws. But people need to know what those rules are. They need to know what is allowed, and what will get them thrown in prison after the next election.
For the sake of edification, let's outline a few of fact patterns that have not been deemed torture under the one federal law the 2004 memo addresses.
The meaning of "severe."
"In Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A)(1978) the court concluding that the combined use of wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink constituted inhuman or degrading treatment but not torture under the European Convention." See footnote 14 of the 2004 memo.
Again, there is not discussion of what does constitute torture, just what it isn't. That is not to say that such actions are permissible and legal in the U.S., it just means that under this section of law, these lawyers are giving those acts as an example of what is not torture. Helpful, eh?
In the Senate Foreign Relations Committee report advising the ratification of the Convention Against Torture (CAT), "... The term "torture, in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain." See page 6 of 2004 memo.
That's all for today. I will continue offering concrete examples to people of what the legal definition of torture is, or may be.
Let's take a minute to review some very important legal documents in the debate on the Bush Administration's torture policy.
There is the August 1, 2002 memo that sets the standard for "torture" as "inflict[ing] pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The memo goes on to say that the application of "mind-altering substances" to be torture "they must produce an extreme effect" that "rise to the level of 'disrupting profoundly the sense or personality.' " Honestly, is that how your mother raised you, to call organ failure the standard of torture? What about pulling our fingernails? That would not be torture under this definition.
After the public release of this legal analysis, the President withdrew it and ordered another memo to be written. The memo of December 30, 2004 reversed some of the conclusions of the August 1, 2002 memo, which was a good thing. What it did not do was outline exactly what was legal to do within the context of an interrogation.
So what good is that?
The 2004 memo lists many cases describing fact patterns that have not been been ruled as constituting torture in U.S. courts. BUT - just when you think you have an answer the following footnote is inserted:
December 1, 2004 memo from the Office of the Assistant Attorney General, footnote 6
" ... In addition, this memorandum does not address the many other sources of law that may apply, depending on the circumstances, to the detention or interrogation of detainees (for example, the Geneva Conventions; the Uniform Code of Military Justice, 10 U.S.C. 801 et seq.; the Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261-3267; and the War Crimes Act, 18 U.S.C. 2441, among others)." (emphasis added)
The memo only applies to one section of law, the federal criminal prohibition against torture, in other words.
So not only doesn't the 2004 memo set a firm line between legal and illegal activities, it ignores military law and other federal laws. But people need to know what those rules are. They need to know what is allowed, and what will get them thrown in prison after the next election.
For the sake of edification, let's outline a few of fact patterns that have not been deemed torture under the one federal law the 2004 memo addresses.
The meaning of "severe."
"In Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A)(1978) the court concluding that the combined use of wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink constituted inhuman or degrading treatment but not torture under the European Convention." See footnote 14 of the 2004 memo.
Again, there is not discussion of what does constitute torture, just what it isn't. That is not to say that such actions are permissible and legal in the U.S., it just means that under this section of law, these lawyers are giving those acts as an example of what is not torture. Helpful, eh?
In the Senate Foreign Relations Committee report advising the ratification of the Convention Against Torture (CAT), "... The term "torture, in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain." See page 6 of 2004 memo.
That's all for today. I will continue offering concrete examples to people of what the legal definition of torture is, or may be.
The Torture Memos - We Knew In 2006 What Was Going On
This is a reprint of something I wrote in 2006. Knowledge of the torture memos has been around that long. Why is all the outrage saved for today? Cowards in the legal community. They didn't want to take on the Bush Administration. Of course, they are all outraged now that it is safe and even popular. Where were they when it counted most?
While working for the CIA in 2006, I wrote on my classified blog that Waterboarding Is Torture, and Torture is Wrong. I outlined how torturing people by using waterboarding could still get someone convicted of a crime despite the immunity law.
I was fired after being told that "everything I have ever read, and everything I have ever written will be examined for signs of illegal activity." With that hanging over my head, I went out into the world by myself.
I got letters and calls from people all over the world. The words of support were gratifying, and I will never forget the people who wrote to me. It really made a tremendous difference at a time when I was reeling. Thank you again.
2006 blog post:
The federal statute making torture criminal is found in 18 U.S.C. sections 2340-2340A. The statute cites the definition of torture: "means an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."
The 2004 Torture Memo restricted its analysis to "(1) the meaning of severe; (2) the meaning of "severe physical pain or suffering"; (3) the meaning of "severe mental pain or suffering"; and (4) the meaning of "specifically intended." " See page 5 of the Department of Justice, Office of the Assistant Attorney General, Memorandum for James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable Under 18 U.S.C. sections 2340-2340A, dated December 30, 2004. This memo is commonly known as one of the Torture memos, and will be referred to here as Torture Memo II.
The last post discussed and gave examples from the Torture Memo II of what was not severe.
Footnote 13 of Torture Memo II cites dictionary definitions of torture to bolster the view that to be considered torture, severity of pain or suffering must be present. Readers can look at dictionaries themselves. However, Econo-girl considers it significant that examples of what would constitute torture are given within the context of references to dictionary definitions.
Specifically, burning, crushing and wounding are the actions mentioned in Torture Memo II footnote 13 as examples of what would constitute torture.
This is important because almost nowhere else in the document is specific guidance given as to what torture actually is. Much describes what it is not.
So one thing we know is that burning, crushing and wounding are referred to as concrete examples of torture in Torture Memo II. The authors are careful to note that "[w]e emphatically are not saying that only such historical techniques - or similar ones - can constitute "torture" under sections 2340-2340A." So torture is recognized as being broader in scope that burning, crushing and wounding. But in terms of drawing a line, that is the only one I have seen so far.
Stay tuned.
While working for the CIA in 2006, I wrote on my classified blog that Waterboarding Is Torture, and Torture is Wrong. I outlined how torturing people by using waterboarding could still get someone convicted of a crime despite the immunity law.
I was fired after being told that "everything I have ever read, and everything I have ever written will be examined for signs of illegal activity." With that hanging over my head, I went out into the world by myself.
I got letters and calls from people all over the world. The words of support were gratifying, and I will never forget the people who wrote to me. It really made a tremendous difference at a time when I was reeling. Thank you again.
2006 blog post:
The federal statute making torture criminal is found in 18 U.S.C. sections 2340-2340A. The statute cites the definition of torture: "means an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."
The 2004 Torture Memo restricted its analysis to "(1) the meaning of severe; (2) the meaning of "severe physical pain or suffering"; (3) the meaning of "severe mental pain or suffering"; and (4) the meaning of "specifically intended." " See page 5 of the Department of Justice, Office of the Assistant Attorney General, Memorandum for James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable Under 18 U.S.C. sections 2340-2340A, dated December 30, 2004. This memo is commonly known as one of the Torture memos, and will be referred to here as Torture Memo II.
The last post discussed and gave examples from the Torture Memo II of what was not severe.
Footnote 13 of Torture Memo II cites dictionary definitions of torture to bolster the view that to be considered torture, severity of pain or suffering must be present. Readers can look at dictionaries themselves. However, Econo-girl considers it significant that examples of what would constitute torture are given within the context of references to dictionary definitions.
Specifically, burning, crushing and wounding are the actions mentioned in Torture Memo II footnote 13 as examples of what would constitute torture.
This is important because almost nowhere else in the document is specific guidance given as to what torture actually is. Much describes what it is not.
So one thing we know is that burning, crushing and wounding are referred to as concrete examples of torture in Torture Memo II. The authors are careful to note that "[w]e emphatically are not saying that only such historical techniques - or similar ones - can constitute "torture" under sections 2340-2340A." So torture is recognized as being broader in scope that burning, crushing and wounding. But in terms of drawing a line, that is the only one I have seen so far.
Stay tuned.
War Crimes! Why Are We So Outraged?
Torture as the Bush Administration's Biggest Legacy - the officials of the Bush Administration committed war crimes. The footnotes in the Torture Memos which I discussed extensively in 2006 show that the Bush Administration did indeed know that Waterboarding is Torture, and Torture is Wrong. And they authorized it anyway.
I wrote about the Torture Memos back in 2006 and was roundly ignored. So did the New York Times, by the way. And this outcry we hear now is a little cowardly. Where were all these civil liberty patriots when the violations were happening? They were too frightened to confront the Bush Administration.
As a contractor at the CIA, I spoke up about the wrongs of torture and its illegality through my classified blog. I warned the people doing waterboarding that they may be criminally prosecuted. Of course, my intelligence career was destroyed. I now practice elder law.
There are probably going to be people prosecuted for torture eventually. In the typical American way, some lower ranking person is going to be strung up as an example. We can't let that happen.
The Dick Cheney and John Yoo types can't be allowed to walk away without consequences. If they can, then other outrages on civil liberties will be attempted, and will one day be successful.
I wrote about the Torture Memos back in 2006 and was roundly ignored. So did the New York Times, by the way. And this outcry we hear now is a little cowardly. Where were all these civil liberty patriots when the violations were happening? They were too frightened to confront the Bush Administration.
As a contractor at the CIA, I spoke up about the wrongs of torture and its illegality through my classified blog. I warned the people doing waterboarding that they may be criminally prosecuted. Of course, my intelligence career was destroyed. I now practice elder law.
There are probably going to be people prosecuted for torture eventually. In the typical American way, some lower ranking person is going to be strung up as an example. We can't let that happen.
The Dick Cheney and John Yoo types can't be allowed to walk away without consequences. If they can, then other outrages on civil liberties will be attempted, and will one day be successful.
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