“Thus, although the subject may experience fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. As we explained in Section 2340A Memorandum, “pain and suffering†as used in Section 2340 is best understood as a single concept, not distinct concepts of “pain†as distinguished from “suffering.â€â€¦ Even if one were to parse the statute more finely to treat “suffering†as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to sufferingâ€â€¦.Jay Bybee, former Dept. of Justice Lawyer in the Bush Administration and current 9th Circuit Judge
Judge Bybee, a graduate of the University of Obfuscation Law School, might also have noted that chopping off a prisoner’s leg is allowable since he had two of them. He did not comment on what to do when you run out of legs but perhaps there are other body parts to consider– testicles, arms, kidneys etc. Reading the memoranda makes it clear that in this and other instances our Law Schools have helped create some monsters that would make Goebbels proud.
The release of four selected torture memoranda from the Bush Justice Department have raised two firestorms, each interesting in its own way. From the right we get the old familiar argument to screw the law and do anything we wish to anyone we think might want to hurt us, regardless of evidence and American values. A deep thinker from the Heritage Foundation reminded us on TV that in the white heat of post 9/11 it seemed clear that we needed to make sure we got the information needed to protect the country regardless of our laws or international law. He conveniently forgot that some of the memoranda were written as late as 2005 and that – in fact – we HAD the information that 9/11 was around the corner, that the information was given to Bush and National Security Advisor Rice – and ignored by both, and that there is little if any evidence that the subsequent use of torture ever improved the quality of information received.
It was not a huge surprise to see an op ed piece in the Wall Street Journal, criticizing the release of the information by former CIA Director Michael Hayden and former Attorney General Michael Mukasey who were apparently upset that leaking the memos’ “…effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on September 11, 2001.” They must have missed the part – referred to above – where Rice and Bush were warned well before 9/11 – a warning based on intelligence gathered via more traditional – and legal – means. But then Hayden and Mukasey both have metaphorical blood on their hands in this matter so it’s not so surprising they take this view.
The blast from the left is criticism of Obama for deciding not to prosecute Intelligence operatives for torturing prisoners with the approval, even urging, of lawyers from Bush’s Department of Justice. (a piece in today’s NY Times details one such case) This is a quandary since to say “they were only following orders†has a 1940s reminiscent stink about it, but this was clearly a decision intended to protect intelligence operatives from the consequences of the folly of their masters and to avoid harming those agencies that – like it or not – we depend on for a degree of security. As for bringing the likes of Judge Bybee and others in leadership positions to justice, it seems unlikely until and unless Obama gets a much larger majority in the Congress. And even then, he would more likely argue for a kind of Commission on Reconciliation and Truth but when looking at the Bush administration and his cronies in Congress it is hard to imagine anything like truth or reconciliation being of any concern to them. And to be credible, such a Commission would need to be bipartisan.
In other news: President Obama welcomed Texas Governor Rick Perry’s suggestion that Texas secede from the Union and offered his assistance in facilitating the process. There is a strong rumor that George W. Bush would emerge from retirement to fill the Office of Texas Monarch, leaving Perry with even less of a job than he has currently.