Much of the discussion of the newly released torture memos has focused, appropriately enough, on their content. But the circumstances in which they were prepared and the process that led to their release may in the end prove even more significant. This is, moreover, essential to assess the culpability of those who were involved in preparing them.
Let’s start with the final paragraph of Bybee’s memo. “This is our best reading of the law,” it says, going on to say that there are “no cases construing this statute.” These are among the memo’s most demonstrably false statements. Bybee is not giving his best understanding of the statute. Indeed, he is stretching it past the breaking point—so far that even the Bush Justice Department wound up repudiating his analysis. And his claim that there was no precedent is likewise a carefully put conscious deceit. A quick tour of the legal database would have returned many precedents relating to waterboarding, just to take one example—indeed, the technique of waterboarding is described in prosecutions going back at least to 1903 (a courtmartial of an American officer for waterboarding, then heavily reported in American newspapers). Why doesn’t Bybee cite them? They all say very much the opposite of what he concludes in this memo. In many of the U.S.-orchestrated tribunals that marked the end of World War II, prosecutors sought the death penalty against defendants accused of having used waterboarding. The Bybee approach is simply to wish all of this extremely unhelpful precedent into oblivion, by saying that there is no precedent “under this statute,” which of course was recently enacted.
So if Bybee’s purpose is not to inform his counterpart about the precedents and the risks he faces proceeding down the path the CIA has taken, then what is going on?
An examination of the memos themselves and the limited available extrinsic evidence shows that Bybee was helping Rizzo address a dilemma. These techniques had been applied, probably hundreds of times, before the memo was authored. But a rebellion had broken out. CIA interrogators were not wild about the use of these techniques. Indeed, the New York Times has already documented the fact that the handlers of one prisoner advised against continued use of waterboarding and other techniques, but were overridden by higher-ups. (The Times quotes its sources as saying that the techniques were applied only after the issuance of the Bybee opinion. That’s probably so with respect to waterboarding, but I believe a thorough investigation will show that several of the harsh techniques were in use much earlier, certainly from April 2002.) But the rebellion included whistleblowers who went to the CIA’s inspector general, John L. Helgerson. He launched a probe which documented what was going on and concluded, correctly, that a number of the techniques then in use were potentially prosecutable as federal crimes. Bybee’s memo and those of his successor Steven G. Bradbury are designed to silence and override the dissenters, most notably the CIA inspector general, and thus put down the rebellion against torture at the CIA. This shows that both Bybee and Bradbury were fully on notice of competent legal analysis of the issues, and it shows the essentially instrumental role that their memos played.
So the backdrop of the Rizzo-Bybee pas de deux is simple and increasingly obvious. Operatives in the field were saying “no.” Competent lawyers were pointing to the obvious criminal culpability in light of the anti-torture statute. CIA personnel were demanding assurances from the Justice Department that they would not be prosecuted for things which any serious study would reveal to be crimes. That pushback puts the lie to the Administration’s oft-mouthed claims that the demand for use of torture techniques was coming from ground-level operatives. But it also underscores the instrumental role played by these memos. The memo-writer and the person soliciting the memo both understood perfectly that their role was to get interrogators out in the field to go ahead and use the techniques against which reservations were being expressed. They understood that, if the memos were issued, individuals would in fact be subjected to the torture techniques they were approving. They also fully understood that it was likely that individuals would be killed or would suffer lasting impairment as a result of their decision to give the greenlight. This satisfies the prerequisites for a criminal charge against the memo writer under section 2340A, conspiracy to torture. The preparation and issuance of these memoranda were criminal acts, and the relevant level of mens rea likely emerges from the dialogue surrounding their issuance.
What about the limits given in the Bybee memorandum? Did Bybee and Rizzo really believe these limits would be carefully observed? There is good reason to be skeptical of this claim. In fact, as Marcy Wheeler points out in a superlative post, the actual application of the techniques bears little resemblance to the ones that Rizzo is quoted describing to Bybee. Waterboarding, for instance, was applied to one prisoner 183 times in a single month. (Recall, by the way, that Michael Hayden assured Congress that its use was “extremely rare,” a claim that should be kept in mind when assessing the truthfulness of other increasingly shrill claims he is currently circulating in his drive to be Dick Cheney’s second.) The volume of water used and other conditions suggest no attention was paid to the Bybee memo. In essence, it appears that Rizzo was bargaining for a greenlight for the use of techniques, and was engaged in a sort of kabuki theater with Bybee. It would be critical to establish the totality of Rizzo’s communications with Bybee at this time, as well as whether earlier drafts were issued and circulated and what comments were secured. The repeated and jarring use of the word “you” in the opinion strongly suggests that the opinion was the product of an extended dialogue, and perhaps a negotiation. These facts would prove very interesting to a prosecutor examining this case.
Moreover, would it really be credible for Bybee to expect that any limits would be adhered to? Remember that at this time, Bush Administration intelligence figures, including Michael Hayden, were proud of their claim to always have “chalk on their cleats,” that is, to go up to and over any rules that set limits on their conduct. Bybee was aware of this operating principle. He should also have been aware of psychological studies such as the Stanford Prison Experiment which have continuously documented the immediate reach to the strongest remedies offered and the tendency quickly to exceed them in the absence of rigorous oversight and brightlines. All of this belongs to the standard literature that an individual such as Bybee should have known.
The torture memoranda were written to enable torture and with the full expectation that it would happen. They are, therefore, documents that evidence criminal conduct. But the full dimensions of the criminal dealings remain substantially obscured. It’s time to start unwinding the torture tango, through a process that involves both a special commission of inquiry and a special prosecutor.