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Wednesday, May 13, 2009 | What are we to do with the torture lawyers, the Bush Administration lawyers who provided the White House with the legal cover it demanded so fighters picked up after 9/11 could be tortured into confessions. Someone must take responsibility for this torture, which is illegal. Should it be the lawyers?

The principals are David Addington, chief counsel to the vice president; and three lawyers from the Justice Department: John Yoo, Jay Bybee and Steven Bradbury. These four authored the answer to the White House request to provide cover to the CIA for its use of “enhanced interrogation procedures” used on terrorism suspects.

The torture memos the four wrote and what they approved (which can be read in the Red Cross report here) make remarkable reading. Bush already had approved the procedures when the memos were requested, so one legal issue is whether the lawyers deliberately slanted their advice and broke the law to provide the White House with the conclusions it wanted.

But why focus on the lawyers? The opinions were terrible law, which is why a Justice Department inquiry now recommends disciplinary action against the authors, but the lawyers didn’t order the torture or do any actual torturing themselves.

The CIA asked for the opinions on ten interrogation techniques it had been using, including slapping, cramped confinement, waterboarding, stress positions, sleep deprivation and confinement with insects. Bybee, the principal author, who was subsequently appointed by Bush to the federal bench in the Ninth Circuit, California’s circuit, approved them all.

Bybee’s arguments are ludicrous, as was his appointment, and now that Justice has recommended disciplinary action, we can hope Congress begins impeachment proceedings against him. In his extraordinary memo, this lawyer/judge goes through the interrogation methods one by one, concluding that none of them constitutes torture.

Though the U.S. Code defines torture as both physical and mental, for Bybee torture only involves techniques that leave marks (How do you detect mental marks?), which he defines as “severe beating with weapons such as clubs” and “the burning of prisoners.” Waterboarding, a technique used to simulate drowning and imminent death, is not torture, he says, because it does not inflict “prolonged mental harm.”

What kind of a judge is this?

As for those insects, Bybee writes: “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.” This technique was used against a man named Abu Zubaydah and as the Red Cross report states, Zubaydah was told the insect was a stinging insect, not a caterpillar.

For more details, read the report. The issue here is who should be held to account for these crimes under Title 18 of the U.S. Code of Justice, which defines torture as “an act intended to inflict severe physical or mental pain or suffering.” Section 2340 specifically mentions “the threat of imminent death.”

So far, President Obama has done his best to duck the issue. He’s said that the CIA torturers themselves should not be prosecuted for they were acting under legal cover (although it’s interesting to note that the FBI and Army, who would have had the same legal cover, declined any involvement in the CIA activities, all carried out at secret so-called “black sites” to avoid interference). Obama has not ruled out legal action against those responsible for ordering the torture, i.e. Bush, Cheney, Gonzales and Rice, though he clearly has other priorities and no particular taste for running down the culprits.

But there is no way to discipline the lawyers without going after their clients. One of the lessons of the Nuremberg Nazi Trials was that when human rights crimes are committed the chain of responsibility goes to the top. Officials willing to inflict torture and lawyers ready to find legal justification for it do not issue the orders. They are collaborators and collectively guilty just as were Hitler’s so-called “willing executioners,” but responsibility starts at the top.

So far, Bush has had nothing to say on about torture while Dick Cheney can’t stop talking about it. “I feel very good about what we did,” says Cheney. “I think it would have been unethical or immoral for us not to do everything we could in order to protect the nation against further attacks.”

The end justifies the means is a common criminal defense, but laws are written against means, not ends. If torture is illegal under the U.S. Code there are reasons for it, and those reasons have to do with who we are, what we believe and how we act, not how Cheney feels about it. We have had torture used against us in war, and in fact waterboarding was prohibited by the U.S. military precisely because the Japanese used it against us in World War II.

Lately Condoleezza Rice was heard to claim the 9/ll attacks were worse than World War II because they hit us at home and thereby justify methods not used in the war. Her reasoning is as specious as Bybee’s, which was dismissed by Yale law school Dean Harold Koh as “perhaps the most clearly erroneous legal opinion I have ever read”

Cheney uses the words unethical and immoral, so perhaps he knows something of the “lesser evil” argument in ethics, which holds that given a necessary choice between evils, the right choice is the lesser evil. Thus does Cheney hope to show that information obtained via torture saved lives.

The claim is refuted by the interrogators themselves. Ali Soufan, one of Zubaydah’s FBI interrogators, says everything learned from Zubaydah was learned before the CIA took over and the torture began. Col. Steven Kleinman, former Air Force intelligence officer, told the Senate Armed Services Committee: “To think that one can use physicality or heavy stress to obtain useful, reliable information is not backed up by operational experience and is not backed up by one shred of scientific evidence.”

Besides that, it’s illegal, which is why, sooner or later, Obama needs to get on the trail of those who broke the law.

James O. Goldsborough has written on foreign affairs for four decades, both from the United States and abroad, where he worked as a foreign correspondent for The New York Herald Tribune, International Herald Tribune and Newsweek magazine for 14 years, reporting from more than 40 countries. Visit his website here. Submit a letter to the editor here.

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