March 28

Aug. 1, 2002: U.S. Department of Justice Office of Legal Counsel Redefines Torture

The Department of Justice (DOJ) Office of Legal Counsel (OLC) issued a series of infamous “Torture Memoranda” redefining the criminal prohibition against torture as defined in 18 USC 2340A-2340B, which “is the controlling legal constraint on interrogations of detainees outside the United States.

Deputy Assistant Attorney General John Yoo and Assistant Attorney General Jay Bybee in the Office of Legal Counsel provided a legal shield for the use of 10 specific so-called “Enhanced Interrogation Techniques,” otherwise defined as torture, declaring that they did not violate U.S. law prohibiting torture. OLC lawyers thereby indemnified the program’s authorizers at the White House and Pentagon, and the implementers at the CIA. This “legal opinion” provided the foundation for the policy and administrative decisions that guided the military and CIA counterterrorism modus operandi.

The “Yoo-Bybee torture memos” greatly narrow and redefine torture while vastly broadening the authority of the president as “Commander in Chief” asserting that: “the President’s inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander in Chief authority.” In essence, the memo gave the president unprecedented dictatorial power.

The CIA Inspector General’s Report (2004) reveals that the OLC “legal opinion was based, in substantial part, on OTS [Office of Technical Services] analysis and the experience and expertise of non-Agency personnel and academics concerning whether long-term psychological effects would result from use of the proposed techniques.” (p. 100) According to the Senate Intelligence Committee Executive Summary (2014) CIA’s Office of Technical Services informed Yoo and Bybee that the SERE techniques were not harmful and could, therefore be used in interrogations. The memo specifies that “enhanced interrogations” are permissible if overseen by health professionals.  However SERE techniques that are used for military survival and self defense training of special forces are entirely different from the “reverse-engineered” tactics that are used as mechanisms for torture.( Read more above <link>)

The dubious memos sought to provide a “legal” shield for the use of torture in interrogations suspected Al-Qaeda and Taliban captured prisoners, including waterboarding. One memo declares that: “certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture.”

The OLC memos were predicated on the involvement of health professionals in torture; they specified that “enhanced interrogations” are permissible if overseen by health professionals. They were written by John Yoo, Deputy Assistant Attorney General and signed by Jay Bybee, Assistant Attorney General; they were addressed to Attorney General, Alberto Gonzales who had already verbally approved 10 interrogation techniques developed by the CIA on July 24, 2002. These torture techniques included stress positions and sleep deprivation; waterboarding was approved two days later. (Senate Intelligence Committee Executive Summary, 2014)

Most importantly, the memos sought to provide a legal defense shield should anyone in the administration or the interrogators be prosecuted for torture:

“If a defendant has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture…. As a theoretical matter [ ] knowledge alone that a particular result is certain to occur does not constitute specific intent….Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.” (p. 3-4)

The memos have been severely criticized for multiple transgressions.
Legal scholars criticize the poor quality of its legal analysis and using an unrelated medical statute in order to reach a narrow definition of “severe pain;” for failing to recognize that the statutory ban on torture does not admit of exceptions; and for failing to construe the torture ban in a way that would avoid conflict with international law. And in 2006 the U.S. Supreme Court overruled the Department of Justice interpretation affirming the right of suspected terrorists in U.S. custody ito the protection afforded under the Geneva Conventions and n the U.S. War Crimes Act. (Hamdan v. Rumsfeld (548 U.S. 557)

Professor of law Katherine Darmer (whose experience included corporate litigation and Assistant US Attorney, Southern District) noted that the author of the memo inappropriately borrowed language from a medical statute to narrow the definition of torture, claiming that to violate the federal torture statute, the intensity of resulting physical pain would have to be “equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death.”  Harold Hongiu Koh, the Dean of Yale Law School, stated that the memo was “perhaps the most clearly erroneous legal opinion I have ever read.” (Katherine Darmer. Waterboarding And The Legacy Of The Bybee-Yoo “Torture And Power” MemorandumChapman Law Review, 2009)

An analysis of the memo by psychologist Jeffrey Kaye shows that Yoo/Bybee grossly misrepresented the evidence of harm produced by stressful SERE techniques. The memo’s claim, “these techniques have been used as elements of a course of conduct without any reported incident of prolonged mental harm” is contradicted by a memorandum (July 24, 2002) written by Dr. Jerald Ogrisseg, a psychologist with SERE, to Lt Col Dan Baumgartner, Chief of Staff of JPRA in which he stated:

“waterboarding was completely inconsistent with the stress inoculation paradigm of training that we used, and was more indicative of a practice that produces learned helplessness – a training result we tried strenuously to avoid.” (Jeffrey Kaye. The Torture Memos Are Not Just Sick, They’re Full of Lies: A Closer Look at the Bybee Memo, Alternet, 2009.

Most important, is the criticism by the Justice Department Office of Professional Responsibility. After a five year investigation, the OPR determined that the attorneys Jay Bybee and John Yoo were guilty of professional misconduct when they issued the infamous “torture memoranda.”

“Based on the results of our investigation, we concluded that former Deputy AAG John Yoo committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.”

“We concluded that former AAG Jay Bybee committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.” (DoJ OPR Report, July 29, 2009)

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