Learn From Our Mistakes

Learn From Our Mistakes

By Scott Forsyth

A version of this article appeared in the ‘Daily Record’ on May 13, 2009.

Some conservatives have criticized President Obama for releasing in April four memorandums authorizing the use of harsh interrogation techniques by the CIA. They shouldn’t because a federal judge was on the verge of ordering their release, pursuant to a Freedom of Information request made by the ACLU.

Also bewildering is the defense of the contents of the memorandums. What the authors stated ran counter to federal and international law on torture. They did not merely engage in an act of “meretricious lawyering” practiced by “millions of lawyers in our litigious society,” as George Will would have you believe. The authors twisted the language of the relevant federal statute and ignored international law to achieve a result desired by the Bush administration. They aided and abetted the commission of a crime and should be held accountable.

Those who rendered the opinions were not counsel to the President or counsel to the CIA. They were the directors of the Office of Legal Counsel in the Department of Justice. The Office proudly acts as outside counsel to the Executive. Its “Best Practices” call for “giving candid, independent, and principled advice- even when that advice may be inconsistent with the desires of policymakers.”

Jay Bybee, now a federal judge, authored the first memorandum on August 1, 2002, and it is poorly reasoned. Counsel to the CIA asked him whether ten interrogation techniques, ranging from “walling” and “facial slap” to “waterboard,” constituted torture under 18 U.S.C. § 2340A. The CIA wanted to use the methods on Abu Zubaydah, an al Qaeda official, being held in Thailand.

The statute makes criminal the commission of torture outside of the United States by anybody acting under color of law. Torture is defined as the specific intent “to inflict severe physical or mental pain or suffering” “upon another person” in custody. 18 U.S.C. § 2340(1). Bybee found no part of the statute would apply to any of the techniques.

The interrogators would lack the specific intent because “the objective of these techniques is not to cause severe physical pain.” Sound circular?

Medical personnel would intervene if the interrogation got too rough. The CIA assured Bybee that Zubaydah’s general physical condition, already poor, would not worsen.

Bybee went further, writing that waterboarding, by definition, cannot cause physical pain. It only creates the sensation of drowning, an illusion. The sensation is a form of mental harm but to be criminal the harm must last “months or years.” Removing the cloth over the nose and mouth gives the victim “immediate relief” and negates the risk of “severe” mental harm.

Tell that to the victim, whose body screams out that he is about to die.

Relying on the memorandum, the CIA waterboarded Zubaydah 83 times in August of 2003. Why?

We do not know absent an investigation. Some have suggested that these later sessions were aimed at finding a link between Iraq and al Qaeda as the Bush administration tried to justify the invasion of Iraq. If this is true, we have an ugly picture of America using torture to obtain information to support a premeditated act. In this view the techniques served a political agenda and did not protect America.

Article II of the U.S. Constitution enumerates the powers and responsibilities of the President. One of the responsibilities is “he shall take Care that the Laws be faithfully executed.” Without question, the CIA violated federal and international laws against torture. Other parts of the Bush administration not only failed to prevent the violations but, as the memorandums reveal, were an active participant in their commission.

The Obama administration can reestablish the rule of law by pursuing legal action against the violators. Doing so would be consistent with the President’s constitutional charge. Not doing so would be a de facto endorsement of lawlessness.

This is not a choice of looking backward or forward. America must move forward but at the same time we must understand fully the origins and consequences of our engaging in torture. If we forego the review, we lose the opportunity to learn from our mistakes.