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."

Comments

[HyperInfluential]

Thanks for keeping your focus on the real issue, Mr. Palermo. There's a flu outbreak of some type every year. This is far more important.

[FGDinVA]

You want to know what bothers me the most about this whole thing. Well, I'll tell you anyway. Our country changes hands every 4 or 8 years. This torture issue can't be downgraded to the status of a "policy decision" because it implies that it could change depending on the administration that is in office. We have a Constitution that guides our country. We have three branches of government that check each other and are sworn to uphold that Constitution. When you get a perfect storm - an unscrupulous executive branch; a willing Congress; and a Supreme Court that is asleep at the bench - you get torture. From Americans. On behalf of Americans.

Those who would downplay the seriousness of this issue cannot care about what America truly is. Those who see America from the outside, wonder what flavor we will become once a new president comes to office. Torture is not a policy to be employed or abandoned when the need arises. It is a crime against humanity.

[gobarackgo]

How much do you want to bet they were out of fuzzy caterpillars and had to go with scorpions instead?

[adhocactivist]

The Bush administration lept to a knee jerk response activity when "the cowards" who attacked us, attacked. Bush saw an opportunity to make money from our fears, and with their cronies in the American Military industrial Complex.

Then because the American psyche was bruised, most of us, not all, bought into the rest of the agenda. Hence the use of torture, retaliation et all, ad nauseum.

There is no doubt American Leadership in the world took a turn downward after we went into Iraq. And what is most discomforting is, we fulfilled Osama bin Laden's dream of taking down America by economic and political means. Bush played right into his political agenda. He was stupid. No doubt. And more to the point - look where we are as a result.

It was sad to see Colin Powell join in.

Obama, to his credit, has begun to put an end to this sordid chapter of American history.

The sooner the better.

We finally have an intelligent President once again. This is an American Leader with the correct mindset. Moderation.

Has anyone ever asked the question: Where would we be today if we had not gone to war? Where would we be today, if we had not used torture to advance our security.

[Pablo175]

So writing a legal opinion is criminal? Where do you draw the line?

[Joseph A. Palermo - Huffpost Blogger]

Yoo, Bybee, Bradbury and the rest must face some kind of punishment or I'm afraid some of you commentors are correct that we'll be up a creek next time around -- Peggy Noonan is the master of the melodramatic patriotic sermon -- always minimizing Republican crimes and then feigning moral outrage whenever something happens with Democrats -- Noonan came up with some of Reagan's most cornball lines, right out of a 1950s newsreel -- she's just a right-wing wordsmith, heavy on the melodrama, light on the substance and detail. Broad strokes served Bush II well too -- the nation isn't there anymore.

[AnnfromCA]

I'm sorry, but when you plop tea baggers into the "discourse," all real meaning flees. Torture wasn't anywhere on the agenda.

[Joseph A. Palermo - Huffpost Blogger]

The Tea Bagger right-wing talk radio is filled with those who apologize for or defend torture -- so what are you talking about Ann?

[gas123]

So you are lumping the fringe in with everyone else. Isn't that what you and the rest of the far left are constantly accusing the right of?

[Doofus]

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

That's some title. You COULD come up with something
if you brought in a Caterpillar D11N 'Impact Ripper' tractor,
weighs about a 100 tons, most likely. Use your imagination.

[Freesia2]

Yes he sank the discourse, and everything else, pretty low. And those you mention (in that amazingly long list) of defenders sank right down with him.

But when he did that, and they helped him, Mr. Palermo they sank me. Our country has a representative government. What they do represents me. So to the rest of the world - I am a torturer. Or was before President Obama came along. And now, if we don't move past them, if that list of defenders manages to influence the Republicans in congress (they've done it before) I will now be a defender of torture.

A torturer. A defender of torture. Me. Freesia the torturer. I am a citizen of the United States of America, and just as you say you can't believe you find yourself having conversation parsing the merits of torture? I can't believe I'm writing this post.

And Bybee has to go off the bench. That's MY law he broke, and my law he's perversely pretending to practice.

[Joseph A. Palermo - Huffpost Blogger]

Hey thanks for the comments, a small contingent, but well-reasoned, quality over quantity I say -- if Bybee is allowed to continue as a Judge then the Nuremberg Trials meant nothing.

[HyperInfluential]

I believe not only should Bybee be impeached and disbarred, all the lawyers who participated in crafting the memos should be liable for civil damages to the victims of torture, or their families if they actually expired while in our care. Even if their eventual trials show them to be criminal conspirators, they can still pursue a civil legal matter, even a class action lawsuit, against these men who authorized their mistreatment.

Bush and Co., of course, the actual decision-makers who asked for the memos to be written, should be tried for War Crimes.

[lungfish]

If all of this is so 'effective" and "legal" and "harmless" then why don't we start allowing law enforcement to use all of these techniques for interrogations? There are corralations between military/terrorst "ticking bomb scenarios" and law enforcement situations. Why not have people "softened up" for interrogation by the police when they are brought in for questioning? I mean, if you arent guilty, it will come out regardless, right????
Lets live in a society where your wives, daughters, sons, parents, neighbors, etc can be put in stress positions, hit, slammed against walls, terrorized in tight boxes with bugs, mock executions, etc... Why not? Whats wrong with that?

This is eseentially at the heart of Bybee's argument. That it isn't torture if there is a doctor in the room,....

[Joseph A. Palermo - Huffpost Blogger]

Hey Lungfish, good point, those kinds of techniques the FBI would never dream of using, yet there's Jack Bauer on 24 always gettin' the bad guys -- I always try to picture the actual conditions of the torture aside form the clinical explanations of the lawyers -- a bunch of big right-wing guys, racist against Arabs, slamming a guy against the wall etc. Not as pretty as the memos make it sound or FOX makes it look on TV.

[Leatherhelmet]

I wonder if the author would like democrats prosecuted since they were on HPSCI and SSCI were briefed on the entire program -- including the results of the program.

Would you throw Jay Rockefeller in jail? Nancy Pelosi?

[Joseph A. Palermo - Huffpost Blogger]

But, but Clinton . . . Leather -- if any lawyer writes these kinds of opinions they should be prosecuted -- just because they briefed a few leading Democrats does not give them the right to torture -- why should Congressional Democrats be prosecuted for crimes that originated from the Bush Administration? You're listening to too much Tea Bagger radio, my friend.

[lungfish]

According to Pelosi her hands were tied. She couldn't even speak about it in Congress. I don't buy it and I think that the Bush Administrations policies were supported in full by many Dems for many years and that they are complicit in much that we find so wrong about the last 8 years.

Sure we need to prosecute the upper tier but I think we need to get the interrogators if they participated. Whomever authorized and conducted the 260some rounds of waterboarding against two detainees in a month needs to prosecuted. Everyone involved needs to be in court facing prosecution.

Frankly, the Dems got on the GOP bandwagon and sang merrily along for years and they should be accountable for that.

[Ramirez]

You dismissed that with a teabagger comment but that was actually a legitimate question. I'm not a lawyer but I would think that one of the key elements of any defense would be that members of Congress were fully briefed at all levels of the process and both the Executive and Legislative branches of our government were in de facto agreement with our detainee interrogation policies. Thus it is difficult for a prosecutor to argue that the Republicans were hiding all this from the innocent Democrats.

I know, I know. I've been watching too much FOX, I need to watch more Comedy Channel, I need to stop tea bagging, etc.

[HyperInfluential]

I believe any member of congress who was briefed on the torture should definitely be brought up on ethics charges. They failed in their clear duty to impeach Bush as soon as they discovered what he had done. No security restrictions or threats of retaliation or even the fact that the impeachment might not have succeeded in going forward due to GOP obstruction should have stopped them from fulfilling their oaths to the Constitution, which forbids cruel and unusual punishment.

[Joseph A. Palermo - Huffpost Blogger]

Hey Johnie2xs, I can always count on you for a good comment to get the ball rolling -- people don't like to comment on the more ponderous posts, just the quick slipshod stuff - we'll be hearing more about Bybee though because these documents that were released are the most horrifying legal monstrosities the profession has seen since Nuremberg. I bet law schools and law profs are discussing the Caterpillar Case with their students -- this is so bad -- this is really the key to how low Bush took our nation, how he brought us down in the eyes of the world, how Bush and his merry band of torturers got kinky and destroyed the country's reputation for decades -- human rights activists the world over were dealt a terrible setback by these torture revelations. These "legal" arguments sicken the soul and anyone who held these views must be removed from the legal profession. It's not the CIA interrogators who I want to really go after -- they should be punished -- but it's far more important to get Yoo, Bybee, and Bradbury because those guys will be back in 2016 as the Attorney General and OLC head of the Sarah Palin or Rick Perry Administrations -- and then they'll be torturing Americans who don't believe in god.

[truenortherner]

A great point you have presented in this column, and an opportunity to consider what these architects of torture brought about. It is especially frightening that these people only required the opportunity to consider these arguments to come out of the woodwork, as it were.

[johnie2xs]

Joey; I might have to find a radio station out there in Sacramento, to do my radio show from, when I get back on the air. Then I can hang out with you and Stan and buy little baubles for Izzy.

Thanks for the mention.

[taikan]

You make a good point about the need for punishment to prevent this type of behavior from recurring. The purpose of punishment for a crime is, at least in part, to deter others from committing the same act(s).

Watergate taught the lesson that you can't get away with "street crimes" done for the purpose of winning an election. Although it didn't prevent Bush and his cronies from stealing the 2000 election with the help of the Supreme Court, at least it prevented them from engaging in the type of overt criminal conduct that gave rise to the Watergate investigation and the subsequent resignation of President Nixon.

Unfortunately, the Iran-Contra scandal taught the lesson that you can get away with crimes as long as you say your actions were for the purpose of protecting the security of the United States. Unless we take action now to make it clear that crimes cannot be excused merely by saying that they were committed for a good purpose (such as protecting the safety of the US from terrorists), it is likely that others will learn from our failure to prosecute in this instance that committing an act in the name of "national security" is the same as having a "get out of jail free" card.

[Freesia2]

You just chilled my blood. "those guys will be back in 2016 as the Attorney General and OLC head of the Sarah Palin or Rick Perry Administrations". Take it back. Please. If not I'm hoping that I prematurely age and drop by then.

[Joseph A. Palermo - Huffpost Blogger]

Free, it's scary but true, these folks came up through Nixon and Reagan and Bush I and believe me they'll be back or their minions in the next GOP administration -- their talent pool is very limited............

[ljmck]

I almost always read anything you write on this site, long or short. In fact, I usually click before I read the title because I know you'll say something that expands my thinking and because the writing will be good.
I'm going to argue a small point, more or less off topic--that "people don't like to comment on the more ponderous posts." That may be true, but an alternate explanation is that by the time the more thoughtful posts appear, I and my fellow commenters have already read two or three shorter, less or equally consequential opinions and leaped at the opportunity to express what we think, what's been burning in our souls for the last eight years. I'd feel like a fraud recycling my comments at another post, unless a specific point kindles a fresh response. I imagine I'm not alone in that. I do enjoy some drive-by shouting from time to time, however.
I'm a tender-skinned fan who appreciates your writing and is quite amazed at and appreciative of your joining the ongoing discussion of your own posts. Many thanks.

[Joseph A. Palermo - Huffpost Blogger]

Thank you ljmck -- I try to get the ball rolling a little with the comments whenever I see such a languid response -- if I right about Coulter sometimes I get 100s of comments, but about torture I get little -- keep on readin' and I'll try my best.

[Guitarsandmore]

Our abandonment of the constitution and the Geneva convention is the ticking time bomb that will end America.

[johnie2xs]

[ : "How do you know that the "terrorist" knows what you suspect he knows?"]

I agree. I had the same thought, many times. What a simple question,yet they can't answer it. That litany of chicken hawks, you named, along with the gutless pundits like George Will and Peggy Noonan who poo poo the idea that any real damage was being done, would squeal like a stuck pig, should anybody have water boarded them. It's enough to make you want to puke.

I think O is playing it smart by saying he's not going to look toward prosecuting the CIA perps, themselves.
I don't agree with that in essence, but I think his master plan is to leave the door wide open for the prosecution of Yoo, Bybee, Rumsfeld, and the rest of the authors, probably to include Bush and Cheney also, but letting the idea percolate amongst the populace, thereby bringing about a strong grass root movement for the necessary justice.

Let's hope they all swing.

[taikan]

Unfortunately, Obama's "master plan" does not appear to involve the prosecution of Yoo, Bybee or anyone else. Rather, he and his surrogates (such as David Axelrod) have made it clear that this administration is not interested in prosecuting anyone for any of the illegal acts taken by members of the Bush Administration. Unless, of course, the illegal act in question resulted in the personal monetary enrichment of an individual.