Memorandum for Alberto R. Gonzales. Counsel to the the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or. Jay Bybee — who signed off on waterboarding as a Justice Department lawyer — ruled last week that the government should be immune from. When we talk today of the “torture memos,” most of us think about the Perhaps Jay S. Bybee himself, inexplicably rewarded for his role in the.
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They advised the Central Intelligence Agencythe United States Department of Defenseand the president on the use of enhanced interrogation techniques: Following accounts of the Abu Ghraib torture and prisoner abuse scandal in Iraq, one of the memos was leaked to the press in June Jack Goldsmiththen head of the Office of Legal Counselhad already withdrawn the Yoo memos and advised agencies not to rely on them.
After Goldsmith was forced to resign because of his objections, Attorney General Ashcroft issued a one paragraph opinion re-authorizing the use of torture. In Maythe CIA requested new legal opinions about the interrogation techniques it was using. Bradburyruling on the legality of the authorized techniques if agents followed certain constraints. In addition to these memos issued by the OLC to executive agencies, internal memos were written related to the use of torture in interrogation of detainees; for instance, in andDonald RumsfeldSecretary of Defensesigned several memos authorizing “Special Interrogation Plans” for specific detainees held at Guantanamo Bay in an attempt to gain more information from them.
All of these memoranda have been the focus of considerable controversy over executive power, government practices, and the treatment of detainees during the Bush administration. They were repudiated by President Barack Obama on January 22,shortly after he took office.
The term “torture memos” was originally used to refer to three documents prepared by the Office of Legal Counsel at the United States Department of Justice and signed in August Since the initial revelation of these documents, other communications related to the use of torture to coerce or intimidate detainees during the Bush administration have been divulged.
InAlberto Gonzales testified before Congress that the CIA sought the opinion after having captured Abu Zubaydah inwho was then believed to be a significant al-Qaeda figure who could provide important information to U.
Questions by CIA officers over which tactics could be used on the detainee had spurred writing the torture memo,  which is reflected in the language of the memo; “You have asked for this advice in the course of conducting interrogations of Abu Zubaydah. Jay Bybee, then Assistant U. He was responding to the president’s reported request for a legal opinion on the U. Convention Against Torture and 18 U. This is the primary “torture memo”, which defines the Department of Justice’s DOJ interpretation of torture.
It is relied upon heavily by the subsequent “torture memos”. It discusses the language of the torture statute 18 U. Part one, in which the text and history of the U. In the first section, the memorandum states that the statute requires specific intent the convention only requires general intent, but the “specific intent” language is found in the U. The article concludes that, “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”.
It suggests that a jury would likely act contrary to law out of misunderstanding by finding such an individual guilty regardless.
In the second section, the memo admits difficulty in finding any clear definition for the “severe pain or suffering” required by the torture statute which is also required by the UN Convention.
After examining the definition provided in various dictionaries, it concludes that “pain” is synonymous with “suffering” “it is difficult to conceive of such suffering that would not involve severe physical pain”and, selecting among the many definitions, the memo proposes that severe pain must be difficult to endure some definitions quoted in the memo define severe pain as “inflicting discomfort”.
In searching for a reference to the term in other U.
Jay Bybee – Wikipedia
That statutory subsection, 8 U. The memorandum concludes with a narrow definition of torture, that its “severe pain” must necessarily be pain associated with “death, organ failure, or serious impairment of body functions”.
It also states that the statute requires “prolonged mental harm” to accompany mental or physical pain, and that “prolonged” means a duration of months or years.
The memo discusses the Convention Against Torture which the memo calls the “Torture Convention” and concludes that the convention makes a distinction between torture and “cruel, inhuman, or degrading treatment or punishment”, and that therefore torture is “only the most extreme acts”, which the memo concludes, together with the ratifying reservations of the Tortkre States, confirms the interpretation of torture found in part one.
It concludes that torture does not include “other acts of cruel, inhuman or degrading treatment or punishment” because such language is found in a different article than the definition of torture, and because it appears that the convention does not intend to criminalize such action, but instead discourage it. The memo examines the ratification history, and cites U. The understanding of the George H. Bush administration, which ratified the Convention, was different from that of the Reagan administration.
It failed to promote any language regarding torture to be only “extremely cruel” behavior resulting in “excruciating and agonizing” pain, and instead, filed a reservation that quoted the text of the U. The memorandum states that, on the basis of the conclusions reached in part one, “there was little difference between these two understandings and The memo examines the negotiating history of the Convention, and finds that the U.
It concludes that the “ratification history and negotiating history [of the convention] all confirm that Section A reaches only the most heinous acts”, and thus implies that this confirms its definition of torture in part one, section two of this memo. Part three summarizes various techniques within the case law to outline the kind of conduct that the courts have previously found to be torture. The memo states that, through an analysis of those cases, “courts are likely to take a totality-of-the-circumstances approach, and will look to an entire course of conduct, to determine whether certain acts will violate Section A.
Although the memo states that nowhere in the case law can a clear interpretation or definition of torture torturd found, because the cases it did find were all regarding extreme acts, it concludes that this confirms the memo’s definition of torture. Part four examines international case law regarding torture, and concludes that while there are many methods that might be cruel, inhuman and degrading treatment, “they do not produce pain or suffering of the necessary intensity to meet the definition of torture.
Part bybfe of the memo analyzes constitutional law as to whether the statute passed by Congress infringes on the powers of the president to conduct war, and concludes that it is unconstitutional. It states specifically that the nation was “in the middle of a war in which the nation [had] already suffered a direct attack”, and that mmo interrogations would encroach on the president’s ability to prevent future attacks. The memo summarizes the terrorist threat from al Qaedaincluding the September 11 attacks, and states that interrogation of al Mmemo operatives led to meno stopping of Jose Padilla ‘s planned attack.
It provides case law supporting its position of the executive branch to conduct war. Part six of the memo is titled “Defenses” and concludes that “under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section A.
In the conclusion section of the memorandum, Bybee summarizes what is viewed as the most important conclusions of the memorandum, namely the definition of torture, the possible unconstitutionality of the torture statute as applied to the president, and the legal justification of necessity or self-defense for any acts that might be torture.
Jay Bybee addressed a memorandum to John A. It summarizes the various methods of physical and psychological coercion to be used by the CIA against Zubaydah see next section, Part I for details.
It discusses the background of Zubaydah and the possible mental effects from such abuse, the background of the consultant to be assisting, and the details of the proposed coercive actions. It then applies the U. It concludes that none of these methods, individually or simultaneously would be considered torture according to law.
The first part says that the advice provided in this memorandum applies only to the facts at hand regarding Abu Zubaydahand that the conclusions of the memorandum may change given different facts.
Those facts, according to the top secret memorandum, are that Abu Zubaydah was being held by the United States, and that, “[t]he interrogation team is certain that he has additional information that he refuses to divulge” regarding terrorist groups in the U. It does not give any specifics or note what makes this conclusion certain. The memorandum states that it appears that the suspect has grown accustomed to their interrogation techniques, and refers to the threat of a possible attack in the United States by unknown individuals.
Without further discussion, the fact summary concludes that the “high level of threat [the reader] believe[s] now exists” is why advice regarding further techniques is being sought.
Continuing to summarize the facts, the memorandum summarizes the characteristics of the professionals present during the proposed interrogation techniques, and summarizes those coercive methods.
It states that the purpose of these methods will be to “convince Zubaydah that the only way he can influence his surrounding environment is through cooperation”. The memorandum describes in detail each of the techniques proposed as generally used, including attention grasp, wallingfacial holdinsult slap, cramped confinement large and small and with and without an insectwall standingstress positions, sleep deprivation, and waterboarding.
It clarifies that a medical expert will always be present “to prevent severe physical or mental harm[. Part two of this memorandum goes into great detail how the techniques described in part one will be applied in Abu Zubaydah ‘s case. It describes the CIA practices, and reminds them how those practices are applied “to ensure that no prolonged mental harm would result from the use of these proposed procedures”.
This section reviews how no appreciable harm has ever resulted from the application of these techniques on U. It summarizes the psychological profile provided of the subject, including his involvement in high-level terrorist activities [Note: It states that after substantial research of the individual’s background, behavior and journal entries, interrogators believe he does not suffer from any psychological disorders or disturbances.
This section concludes by emphasizing the potential value of the information he could provide, as well as his likely strong ability to resist standard interrogation techniques.
This section provides legal analysis of the U. After summarizing the law, it analyses the elements of the offense of torture inflicting severe pain or sufferingand the specific or criminal intent required by the statute for the offense. John Yoothen Deputy Assistant Attorney General in the Office of Legal Counseladdressed a memorandum to Alberto Gonzalesthen the counsel to the president, dated August 1,in response to Gonzales’ reported request for legal opinion on whether interrogation methods used on al Qaeda operatives would be in violation of the U.
Convention Against Tortureand whether such actions could be the basis for prosecution in the International Criminal Court. The letter concludes that the interpretation of the Department of Justice of 18 U. It also concludes that “actions taken as part of the interrogation In the explanation of the definition of torture according to 18 U.
Another Tortured Memo from Jay Bybee | Brennan Center for Justice
It also emphasizes that the individual inflicting such pain must have “specific intention to inflict severe pain or suffering”. The letter explains section ‘s definition of “severe mental pain or suffering”, and reminds the reader of the need for “prolonged mental harm”. As the memo quotes from the definition of torture in the Convention Against Torture, it compares that definition to the one found in the U.
That reservation was mainly regarding Article One of the Convention, which defines torture, but it also states that the U.
The memo notes that in the reservation, the U. Commenting on the specificity of the reservation and statute regarding mental pain or suffering, the memo says, “this understanding ensured that mental torture would rise to a severity comparable to that required in the context of physical torture. Therefore, it states, if the interrogation conduct did not violate the U. While the letter states there is little substantive difference between the definition of torture in the text of the statute or reservation and in the Convention, most of the material in this part of the memo is dedicated to explaining why the reservation to the Convention is valid and cannot be overturned.
The memo closes this section reminding the reader of the refusal of the U. In discussing the possible prosecution by the ICC, the memo states that the U. The memo further argues that even if the ICC were to claim jurisdiction, ybbee of an al Qaeda operative could not constitute a crime under the Torturs Statute”, since it would not involve the “widespread and systematic attack directed against any civilian population” and would not be considered a war crime.
Yoo writes that, in his opinion, “[t]he United States’ campaign against al Qaeda is an attack on a non-state terrorist organization, not a civilian population. Bush’s “assertion” that “neither members of the al Qaeda terrorist network nor Taliban soldiers were entitled to the legal status of prisoners of war memmo the [Geneva Convention],” and therefore planned interrogation methods would not constitute a violation of the Geneva Convention, or war crime.
This interpretation of the Geneva Convention was sent in memos, despite objections by attorneys and the Secretary of the Department of Torturre,   on January 9, January 22, February 1, and again on February 7, Yoo concludes the letter by stating, “It is possible that an ICC official would ignore the clear limitations imposed by the Rome Statute, or at least disagree with the President’s interpretation of [the Geneva Convention].
Of course, the problem of the ‘rogue prosecutor’ is not limited to questions about the interrogation of al Qaeda operatives, but is a potential risk for any number of actions that have been undertaken during the Afghanistan campaign We cannot predict the political actions of international institutions. He wrote a memo to the DOD on March 14,concluding that “federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects”.
The legal opinion had been requested by William J. HaynesGeneral Counsel of the Department of Defense. Yoo was acting head of OLC for several months. A professor at the University of Chicago Law Torturre before government service, he had previously been legal adviser to William Haynesthe General Counsel of the Department of Defense. In the spring of byebe, the Abu Ghraib prisoner scandal broke into the news, and in Junethe Bybee memo was vybee to bybee press.
Goldsmith says he had decided to revoke what the CIA had been calling its “golden shield” against prosecution six months before the abuses at Abu Ghraib were revealed.