Why the Torture Memos Matter

WHY THE TORTURE MEMOS MATTER By Bennet Kelley A companion to “Why the Torture Memos Matter” on Huffington Post (originally published in Santa Monica Daily Press).

Table of Contents Part 1: Part 2: Intro: What Does Torture Torture and US The Torture Say About Us History Memos

Actions often speak louder than words.

Whether they are good . . .

or bad

What does torture or attrocities say about us as a nation?

Mai Lai Massacre

Abu Ghraib

. . . or Waterboarding?

As John McCain eloquently said: the issue of waterboarding “has nothing to do with al Qaeda, [but] it has everything to do with America.” He added . . .

PART 1 TORTURE AND US HISTORY

We are unique as a nation in that we were founded upon common beliefs and not common heritage We hold these truths to be self- evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The No Torture Club And from inception , this nation has rejected the use of torture. TR on waterboarding:– nothing can justify . . . the use of torture of any kind on the part of the American Army.

After World War II, Japanese officers who ordered the use of waterboarding were convicted of war crimes and hung.

The Waterboarding Club Khmer Rouge Pinochet

Did we fight the Cold War . . .

and win . . .

so we could be more like the Soviets? “Aggressive” interrogation techniques “ are borrowed from techniques used by Soviets. These techniques, however, which were designed to yield propaganda (e.g, forced confessions) and not valuable intelligence. See History

Generals Against Torture Generals – from Napoleon to Colin Powell -- - have argued that torture rarely yields any information of value and is counter- productive to the Colin Powell Napoleon Bonaparte cause. Link and Link

The US Army Agrees 1992 Edition

But Lord Vader Dick Cheney says + ≠ Khalid Shaikh Mohammed Waterboarded As a result – the US stopped a (KSM) 183 Times 9/11 style attack on LA

Oh really, Dick?? The LA plot was broken up in 2002. One year before the capture and waterboarding of KSM . According to federal counter- = + terrorism officials, “at best, the alleged plot was something that had been PLOT CAPTURED discussed but never put into “THWARTED” IN 2003 action. By the time anybody IN FEB 2002 knew about it, the threat -- if there had been one -- had passed”. Media Matters and LA Times

AND WHAT DOES THE PENTAGON HAVE TO SAY ON THIS SUBJECT?

Three years after the capture of KSM, the head of Army intelligence says: No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years . . . tell us that.

PART 2 THE TORTURE MEMOS

John Yoo was Deputy Assistant Attorney General in the Office of Legal Counsel. The Office of Legal Counsel provides opinions on the Constitutional authority of various branches of government. Prior to joining the Justice Department, Yoo had clerked for D.C. Circuit Judge Lawrence Silberman and Justice Clarence Thomas – two hard core right wing ideologues. Yoo was very much from the same mold.

OLC legal opinions are supposed to be “thoroughly researched and soundly reasoned [which includes providing] candid, independent and principled advice.”

Two Principal Memos Standards of Conduct for Interrogation under Convention Against Torture -- Jay Bybee (and John Yoo) (8/2/02) Application of Treaties and Laws to al Qaeda and Taliban Detainees --- John Yoo (1/9/02)

Torture Timeline Jan 02 Feb 02 Yoo Memo on May 02 Geneva Bush signs Convention CIA Director Tenet memorandum that given green light to Geneva convention -- Accepted by waterboard does not apply to al White House Qaida or Taliban Counsel Gonzales

Memos Gave Cover For Abuses That Followed June 04 Oct-Dec 02 Aug 02 Assistant AG Aggressive Bybee Torture Goldstein orders Techniques Memo Yoo memos implemented at withdrawn Gitmo and Iraq

What is Torture? Memo redefines torture to only where: • Victim experiences intense pain or suffering that is equivalent to severe physical injury that likely will result in death, organ failure or permanent loss of significant body functions – AND • where the “torturer” intended to cause such severe harm (as distinct from intentionally engaging in the act causing such harm)

Response • Improperly excludes cruel, inhuman or degrading treatment. Would permit many of Saddam Hussein’s abuses. • “In my professional opinion as a law professor and a law dean, the Bybee memorandum is perhaps the most clearly legally erroneous opinion I have ever read.” Harold Koh, Dean of Yale Law School who worked in Reagan Justice Department

Defenses • Torturer could claim self-defense in light of 9/11 or claim simply carrying out President’s orders • President has constitutional authority to engage in torture and any effort to apply U.S. criminal prohibitions on torture that interferes “with the President’s direction of . . . the detention and interrogation of enemy combatants thus would be unconstitutional.”

Response • “Simply following orders” is not a defense per the Nuremberg War Crime Tribunal • “The federal prohibition on torture, . . . is constitutional, and does apply as a general matter to the subject of detention and interrogation of detainees conducted pursuant to the President's Commander in Chief authority. . . . The President, like all officers of the Government, is not above the law.” Asst. Attorney General Stephen Bradbury (2005) • Yoo’s opinions reflected “an unusual lack of care and sobriety in their legal analysis.” Yoo’s “extreme conclusion has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.” Jack

Application of Geneva Convention • Not subject to Geneva Conventions • Eliminates application to al Qaeda by asserting that treaties only applies to nation states • Redefines Afghanistan as “failed state” to exclude Taliban detainees from scope • Not governed by War Crimes Act since contrary to President’s plenary authority as Commander in Chief

• The premises underlying Yoo’s Jan. 9 Response memo were wrong as a matter of international law and other arguments made were “without support,” “contrary to the official position of the United States,” and “legally flawed and procedurally impossible at this stage.” William H. Taft IV, State Dept. Legal Advisor (Jan. 2003) • Applies double standard since Yoo contends that al Qaeda and Taliban subject to rules of war, but U.S. is not

Summary Yoo and Bybee are guilty not only of bad lawyering and possibly ethical violations but the fact that they went to such extremes in memos that would serve as the launching pad for what ultimately became Abu Ghraib, might suggest that they were consciously enabling and therefore conspiring with their superiors to commit war crimes.

Did Yoo/Bybee violate ethical prohibitions on assisting unlawful acts or in failing to provide a balanced opinion? Did Yoo/Bybee violate the law? Should Bybee, who is now a judge on the 9th Circuit be impeached? Should Yoo be fired as a faculty member at Cal-Berkeley?

ISSUE WORTH EXPLORING SINCE IT SENDS A MESSAGE THAT NOBODY SHOULD BE ABOVE THE LAW

AND AFFIRM THAT WE STAND FOR THIS

AND NOT THIS

Bennet Kelley is an award winning political columnist for the Santa Monica Daily Press and Huffington Post. He has been active in politics for over 30 years and was Co-Founder of the Democratic National Committee's Saxophone Club, its young professional outreach and fundraising arm, from 1992 to 1998. Bennet has provided political analysis and insight to television, radio and print media ranging from KABC to the Washington Times. He recently has teamed up with conservative political consultant Jim Ellis to form Filibanter (filibanter.com) which provides audiences with a light-hearted, yet insightful, look at www.BennetKelley.com contemporary politics bennet@bennetkelley.com Bennet also is a contributing author to Big Bush Lies: 20 Essays and a List of the 50 Most Telling Lies of George W. Bush (RiverWood Books 2004) and was publisher of BushLies.net.

Why the Torture Memos Matter

by Bennet Kelley

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