Critics Still Haven't Read the
May 16, 2009
The Wall Street Journal
Sen. Patrick Leahy wants an independent commission
to investigate them. Rep. John Conyers wants the Obama Justice Department to
prosecute them. Liberal lawyers want to disbar them, and the media maligns
What did the Justice Department attorneys at George
W. Bush's Office of Legal Counsel (OLC) -- John Yoo and Jay Bybee -- do to
garner such scorn? They analyzed a 1994 criminal statute prohibiting torture
when the CIA asked for legal guidance on interrogation techniques for a
high-level al Qaeda detainee (Abu Zubaydah).
In the mid-1980s, when I supervised the legality of
apprehending terrorists to stand trial, I relied on a decades-old Supreme
Court standard: Our capture and treatment could not "shock the conscience"
of the court. The OLC lawyers, however, were not asked what treatment was
legal to preserve a prosecution. They were asked what treatment was legal
for a detainee who they were told had knowledge of future attacks on
The 1994 law was passed pursuant to an
international treaty, the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment. The law's definition of torture
is circular. Torture under that law means "severe physical or mental pain or
suffering," which in turn means "prolonged mental harm," which must be
caused by one of four prohibited acts. The only relevant one to the CIA
inquiry was threatening or inflicting "severe physical pain or suffering."
What is "prolonged mental suffering"? The term appears nowhere else in the
Congress required, in order for there to be a
violation of the law, that an interrogator specifically intend that the
detainee suffer prolonged physical or mental suffering as a result of the
prohibited conduct. Just knowing a person could be injured from the
interrogation method is not a violation under Supreme Court rulings
interpreting "specific intent" in other criminal statutes.
In the summer of 2002, the CIA outlined 10
interrogation methods that would be used only on Abu Zubaydah, who it told
the lawyers was "one of the highest ranking members of" al Qaeda, serving as
"Usama Bin Laden's senior lieutenant." According to the CIA, Zubaydah had
"been involved in every major" al Qaeda terrorist operation including 9/11,
and was "planning future terrorist attacks" against U.S. interests.
Most importantly, the lawyers were told that
Zubaydah -- who was well-versed in American interrogation techniques, having
written al Qaeda's manual on the subject -- "displays no signs of
willingness" to provide information and "has come to expect that no physical
harm will be done to him." When the usual interrogation methods were used,
he had maintained his "unabated desire to kill Americans and Jews."
The CIA and Department of Justice lawyers had two
options: continue questioning Zubaydah by a process that had not worked or
escalate the interrogation techniques in compliance with U.S. law. They
chose the latter.
The Justice Department lawyers wrote two opinions
totaling 54 pages. One went to White House Counsel Alberto Gonzales, the
other to the CIA general counsel.
Both memos noted that the legislative history of
the 1994 torture statute was "scant." Neither house of Congress had
hearings, debates or amendments, or provided clarification about terms such
as "severe" or "prolonged mental harm." There is no record of Rep. Jerrold
Nadler -- who now calls for impeachment and a criminal investigation of the
lawyers -- trying to make any act (e.g., waterboarding) illegal, or
attempting to lessen the specific intent standard.
The Gonzales memo analyzed "torture" under American
and international law. It noted that our courts, under a civil statute, have
interpreted "severe" physical or mental pain or suffering to require extreme
acts: The person had to be shot, beaten or raped, threatened with death or
removal of extremities, or denied medical care. One federal court
distinguished between torture and acts that were "cruel, inhuman, or
degrading treatment." So have international courts. The European Court of
Human Rights in the case of Ireland v. United Kingdom (1978)
specifically found that wall standing (to produce muscle fatigue), hooding,
and sleep and food deprivation were not torture.
The U.N. treaty defined torture as "severe pain and
suffering." The Justice Department witness for the Senate treaty hearings
testified that "[t]orture is understood to be barbaric cruelty . . . the
mere mention of which sends chills down one's spine." He gave examples of
"the needle under the fingernail, the application of electrical shock to the
genital area, the piercing of eyeballs. . . ." Mental torture was an act
"designed to damage and destroy the human personality."
The treaty had a specific provision stating that
nothing, not even war, justifies torture. Congress removed that provision
when drafting the 1994 law against torture, thereby permitting someone
accused of violating the statute to invoke the long-established defense of
The memo to the CIA discussed 10 requested
interrogation techniques and how each should be limited so as not to violate
the statute. The lawyers warned that no procedure could be used that
"interferes with the proper healing of Zubaydah's wound," which he incurred
during capture. They observed that all the techniques, including
waterboarding, were used on our military trainees, and that the CIA had
conducted an "extensive inquiry" with experts and psychologists.
But now, safe in ivory towers eight years removed
from 9/11, critics demand criminalization of the techniques and the
prosecution or disbarment of the lawyers who advised the CIA. Contrary to
columnist Frank Rich's uninformed accusation in the New York Times that the
lawyers "proposed using" the techniques, they did no such thing. They were
asked to provide legal guidance on whether the CIA's proposed methods
violated the law.
Then there is Washington Post columnist Eugene
Robinson, who declared that "waterboarding will almost certainly be deemed
illegal if put under judicial scrutiny," depending on which "of several
possibly applicable legal standards" apply. Does he know the Senate rejected
a bill in 2006 to make waterboarding illegal? That fact alone negates
criminalization of the act. So quick to condemn, Mr. Robinson later replied
to a TV interview question that he did not know how long sleep deprivation
could go before it was "immoral." It is "a nuance," he said.
Yet the CIA asked those OLC lawyers to figure out
exactly where that nuance stopped in the context of preventing another
attack. There should be a rule that all persons proposing investigation,
prosecution or disbarment must read the two memos and all underlying
documents and then draft a dissenting analysis.
Ms. Toensing was chief counsel for the
Senate Intelligence Committee and deputy assistant attorney general in the