Bush Administration Created New Definition Of Torture
By Justin Gardner | Related entries in Bush, History, Law, TortureApparently it’s not actually torture unless the one doing the interrogation intends to cause severe pain or suffering. And if it “accidentally” happens over the course of months or years, well…you can’t make an omelet…
So how do I know this? Well, the ACLU requested the following memos under the Freedom of Information Act and pieces of them were released.
“Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture,” Jay Bybee, then the assistant attorney general, wrote in the memo.The 18-page memo is heavily redacted, with 10 of its 18 pages completely blacked out and only a few paragraphs legible on the others.
Another memo released Thursday advises that “the waterboard,” or simulated drowning, does “not violate the Torture Statute.”
It also cites a number of warnings against torture, including statements by President Bush and a then-new Supreme Court ruling “which raises possible concerns about future U.S. judicial review of the [interrogation] Program.”
A third memo instructs interrogators to keep records of sessions in which “enhanced interrogation techniques” are used. The memo is signed by then-CIA director George Tenet and dated January 28, 2003.
So when Bush was saying “we do not torture”, I guess what he was really saying was “we do not intend to inflict severe pain or suffering.”
How did they think they’d get away with this?
This entry was posted on Thursday, July 24th, 2008 and is filed under Bush, History, Law, Torture. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
July 24th, 2008 at 5:31 pm
I’m curious as to why you think they _didn’t_ get away with it. From where I sit, it sure looks like they have.
July 24th, 2008 at 6:23 pm
‘A Landmark Day for Torture-Disclosure’ (Updated)…
by Damozel | The ACLU has released some crucial memoranda which reveal the tortuous path by which the Bush Administration’s Department of ‘Justice’ taught the CIA to rationalize its way to a distinction between ‘enhanced interrogation’ and plain o…
July 24th, 2008 at 7:48 pm
They absolutely got away with it in every way and are getting away with it RIGHT NOW.
July 24th, 2008 at 10:25 pm
Start with the statute. It’s, you know, a law thingie.
If you don’t do that you’re just ranting.
July 25th, 2008 at 11:19 am
Tully,
I know the statute, but it’s the way they narrowly interpreted the law that I take issue with. Maybe that makes it a rant, but I seriously doubt whoever wrote this meant that an interrogator could avoid prosecution if they didn’t believe they were causing pain, be it physical or emotional.
Because what that means is if somebody genuinely cries out in pain or asks the interrogator to stop…they can simply dismiss it as a suspect lying. Does that make ANY sense?
And therefore, by coming up with such a misguided interpretation, they created their own definition of what torture was.
July 25th, 2008 at 12:18 pm
I’ve had this discussion before with legal experts.
The executive has the duty and obligation to do everything legally within their power to defend the nation. And yes, that requires that they define the precise limits of what they can legally do in pursuit of that duty. You may not like their interpretation (I don’t care for it) but it’s their duty and obligation to interpret the statute narrowly, and their interpretation is not (legally) unreasonable. “Misguided” is not a legal referent, but an assumptive moral one.
You raise the point of intent, and that is precisely where “reasonable expectation” comes into play. We cannot know exactly what might cause any given person to suffer “prolonged mental harm,” because some people are (heh) mental. (Snarky Example: Depriving a porn addict of their video porn might cause them “prolonged mental harm,” but no reasonable person would expect it to do so when applied to a normal person, so there would be no intent present. Your subject might have an irrational fear of basketballs…but no reasonable person would expect a normal person to go psycho from being subjected to a Lakers game.)
So the reasonable expectation standard applies to intent. The question that had to be answered was, can the techniques in question be reasonably expected to cause “prolonged mental harm,” and if so, in what specific circumstances? Without a reasonable expectation that the action will cause “prolonged mental harm” there is no intent to do so (even if polonged mental harm actually results) and thus no crime. Contrary-wise, if a technique ould be reasonaly expected to cause prolonged mental harm, it would still be a crime even if no such harm actually resulted.
And that’s the subject of the memo, the location of that line. That does NOT constitute “their own definition,” it’s an applied interpretative analysis of the law, a law including the very same element of intent that underlies centuries under Anglo-American jurisprudence. If a required element of a crime is missing, then no crime was committed, and in this case intent is an explicit and required element, and therefore must be considered in ANY legal analysis. Had they NOT addressed intent, they wouldn’t be doing their jobs.
I don’t personally care for their interpretation, but their interpretation was not legally unreasonable, and it’s the legal boundaries they must consider, not opinions. Yep, lawyers parse the law. It’s what they do. But they did not parse it unreasonably or arbitrarily here, however much you might morally object to their interpretation.
July 25th, 2008 at 2:01 pm
“How did they think they’d get away with this?”
What do you mean? They did. Retroactive immunity for everyone involved except for those who were just “following orders”, and both major political candidates are going to keep doing the same old-same old – witness Obama’s flipflip on the FISA bill.