THE BLOG
05/21/2009 05:12 am ET | Updated May 25, 2011

Jay S. Bybee: It's Not Torture If You Use A Caterpillar

On August 1, 2002, then Assistant Attorney General Jay S. Bybee, who now serves on the U.S. Court of Appeals for the Ninth Circuit, sent an 18-page memo he wrote to the Acting Counsel of the Central Intelligence Agency. It surfaced as one of the four "torture memos" from the Bush Justice Department the Obama Administration made public last week. Specifically addressing the interrogation of al Qaeda suspect Abu Zubaydah, Bybee argues that since the "Survival, Evasion, Resistance, Escape" (SERE) training some American servicemen endure generally does not cause long-term physical or psychological damage it's safe to assume the same for foreign captives undergoing interrogation. It's clear that Bybee was writing up a fraudulent interpretation that he knew would never stand the light of day or be upheld in open court.

On waterboarding Bybee writes: "[A]lthough the subject may experience the fear and panic associated with the feeling of drowning the waterboard does not inflict physical pain. . . . The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict 'severe pain or suffering.' Even if one were to parse the statute more finely to attempt to treat 'suffering' as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering. . . . Accordingly, we conclude that these acts neither separately nor as part of a course of conduct would inflict severe pain or suffering within the meaning of the statute." (p. 11) American interrogators waterboarded Zubaydah eighty-three times.

Discussing what he refers to as "confinement in a box," Bybee is equally confident this practice, like "the waterboard," "sleep deprivation," and "walling" (the practice of pounding someone's head against a wall with a towel wrapped around his neck to prevent whiplash) does not constitute torture and is permissible under U.S. law: "As with the other techniques discussed so far, cramped confinement is not a threat of imminent death." Because Zubaydah "would spend at most two hours in this box" the practice is okay. "Like the stress positions and walling, placement in the boxes is physically uncomfortable but any such discomfort does not rise to the level of severe physical pain or suffering," Bybee concludes. (p. 14)

Among Bybee's "greatest hits" contained in his torture memo the most interesting is where he discusses putting an insect in the "confinement box" along with Zubaydah. Evidently, Zubaydah indicated to his captors through some kind of psychological test that he feared the critters:

"In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. . . . [Y]ou must inform him that the insects will not have a sting that would produce death or severe pain." (p. 14) Here the word "insect" moves from the singular to the plural "insects" without elaboration. Then there's a sentence blackened out ("redacted") from the memo before it continues: "An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box. . . . Thus, we conclude that the placement of the insect in the confinement box with Zubaydah would not constitute a predicate act," i.e. violate the anti-torture statute. (p. 14) "[T]hough the introduction of an insect may produce trepidation in Zubaydah it certainly does not cause physical pain." (p. 10)

So if you lock a guy in a box for hours with a stinging insect -- that's unacceptable. But if you lock a guy in a box for hours with an insect or insects that only bite or are "harmless," like a caterpillar, but only tell him it's a stinging bug, that's a legitimate interrogation technique.

See how easy chicanery is? Bybee should pick up a copy of George Orwell's 1984.

And no matter what techniques an interrogator might choose if his intent is pure then he need not worry about breaking U.S. laws banning torture. "To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture."[!!] (p. 16) That's like saying if a guy holds a straight-edged razor to your throat but has no "intent" to harm you it's nothing more than benign persuasion and you shouldn't get too worried about it.

The Obama Administration's decision to make public more of the "torture memos," the lawyerly products of George W. Bush's little shop of horrors inside the Justice Department, begins the long and complicated process of coming to terms with what the Bush Administration was doing in this country's name. More than any single element of the "War on Terror," authorizing torture through the twisted "legal" opinions that leapt from the fertile and kinky imaginations of Bybee, John Yoo, and Steven Bradbury of the Office of Legal Counsel calls into question the judgment and morality of those who ruled the world's "last best hope for mankind" for eight long years. Judge Bybee showed such horrible judgment in his pained re-working of the U.S. torture statutes that it should raise questions about whether he is qualified to issue new judgments from the federal bench. Impeachment and subsequent disbarment are certainly in order.

I never thought I would be having arguments with people I know about the merits of torture but I have had many such debates, which goes to show you how low Bush sunk the general level of American political discourse.

According to the CIA Abu Zubaydah is not a nice guy. He is a religious fanatic and a terrorist who is determined to kill Americans in any ingenious way he and his buddies in Al Qaeda can cook up. Yet even a "high value" terrorist suspect like Zubaydah never should have been tortured. Torture is a sign of pre-Enlightenment barbarism and has no place in the modern world. It's immoral and it doesn't even work in getting useful information. The Bush Administration's decision to legitimize torture undermined the efforts of torture victims and those who fight against the practice the world over. It denuded the meaning of any attempt by the United States to make moral judgments about other nations' "human rights" records. Authorizing torture led health care professionals who were involved, doctors and psychologists, to violate the ethical standards of their professions and the Hippocratic oath. It also perverted the legal profession by legitimizing crazy arguments from lawyers like Bybee.

The "ticking time bomb" argument favoring torture that lawyers like Alan Dershowitz and John Yoo and others have shoved down our throats for years now, and was even dramatized serially in a popular FOX TV show 24, has collapsed under the weight of the new revelations about the case of Abu Zubaydah.

Some of my friends and relatives who insist on defending torture for some reason -- probably from watching too much 24 -- insist that IF a "terrorist" has information that can SAVE LIVES torturing the poor bastard is not only a good idea, it's the right thing to do. I've heard every variation of the "ticking time bomb" argument but no one, not even Dershowitz or Yoo, could answer the simple question: How do you know that the "terrorist" knows what you suspect he knows? In the case of Zubaydah, he had been cooperating with FBI interviewers when they were using the standard rapport-building interrogation techniques and he told them everything he knew. But that wasn't good enough for the Bush people who forced him to endure months of torture. Zubaydah couldn't tell his torturers where the "ticking time bomb" was hidden because there was no "ticking time bomb" to tell them about. The Bush people's justification for torturing this guy was without merit even by their own twisted logic. At some point it just became vengeful and kinky.

President Barack Obama promised last week at the summit with Latin American leaders in Trinidad to open up a new dialogue with Cuba toward ending the 47-year-old economic embargo. It's supremely ironic that the biggest human rights violator on the island of Cuba was not the crusty "communist" regime of Fidel and Raul Castro but the United States through its ownership of the prison camps at Guantanamo Bay.

The Tea Baggers might hate taxes and hate government but they sure loved George W. Bush's torture policies. Sean Hannity and Glenn Beck and Rush Limbaugh and Michael Savage and Dennis Prager and Laura Ingraham and Michael Medved and Bill O'Reilly and Bill Bennett and Neal Boortz and Lars Larson and Mike Gallagher and the rest of them all enthusiastically supported torture and denounced those who didn't agree with them as endangering American lives. They supported torture despite the fact the U.S. military opposed it; they supported torture despite the fact that rogue regimes they claim to loathe practice it; they supported it despite the fact their personal Savior, the source of their political piety as well as Bybee's, was himself a victim of torture (I saw the Mel Gibson movie). They supported torture because the president they loved supported it. It's ironic that the same Tea Baggers who have such an intense distrust and hatred of government and paying taxes are willing to cede to the government the power to render and torture any person deemed a "threat" to "national security." And these talk-radio Tea Baggers continue to project an aggrieved nationalism that is religious in its observance of partisan dogma. They still insist that you can't be a true-blue patriotic American unless you accept the necessity of torturing suspected terrorists. After all, they say, "it's the law."