John Yoo's Torture Memo Released

Today's Washington Post describes the declassification and release of the infamous "Torture Memo" written by then Assistant Attorney John Yoo.

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce "an extreme effect" calculated to "cause a profound disruption of the senses or personality."

Although the existence of the memo has long been known, its contents have not been previously disclosed.

Marty Lederman at Balkinization, writes that:

the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" -- it "seemed more an exercise of sheer power than reasoned analysis" -- and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo.

Two parts of the memo have been released and can be found here and here. As stated above, the memo makes up 81 pages, but what stands out to me in reading the first part is the way Yoo applies his brilliant research skills to the terrible task of justifying torture and providing a rationale for its use. He found a way to rise up quickly in the Bush administration and was willing to leap over the Geneva Conventions and justify techniques that have been prosecuted in the past as torture, no doubt realizing that his "client," the President desired a justification rather than a sound legal analysis.

Like the Downing Street Memo, the intelligence was once again being fixed around the policy. Only then the policy was war; now it was torture as an implement of this war.

Note the way Yoo "leaps" from defining torture as involving "severe ... pain," as it's commonly understood, and eventually ends up defining it as involving only "death, organ failure, or serious impairment of body functions."

--The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering."...

--Significantly, the phrase "severe pain", appears in statutes defining an emergency medical condition for the purpose of providing health benefits....

--These statutes define an emergency condition as one "manifesting itself by ,'acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part."

--Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment.

--Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."

The memo was written in March 2003 and the "trickle down" effects occurred quickly. Barely 7 months later, Army Specialist Sabrina Harman arrived at Abu Ghraib prison. As this excellent article in the New Yorker describes it, Spec. Harman wrote many letters home to "the woman she called her wife." Spec. Harman, however, is not famous for her letters as much as her photographs which, when released, were worth a thousand words toward showing the type of abuse (that Yoo would not call torture) occurring at Saddam's former prison.

On October 20, 2003, Spec. Harman wrote this letter to her "wife:"

Okay, I don’t like that anymore. At first it was funny but these people are going too far. I ended your letter last night because it was time to wake the MI prisoners and “mess with them” but it went too far even I can’t handle whats going on. I cant get it out of my head.

I walk down stairs after blowing the whistle and beating on the cells with an asp to find “the taxicab driver” handcuffed backwards to his window naked with his underwear over his head and face. He looked like Jesus Christ. At first I had to laugh so I went on and grabbed the camera and took a picture. One of the guys took my asp and started “poking” at his dick. Again I thought, okay that’s funny then it hit me, that’s a form of molestation. You can’t do that. I took more pictures now to “record” what is going on.

They started talking to this man and at first he was talking “I’m just a taxicab driver, I did nothing.” He claims he’d never try to hurt US soldiers that he picked up the wrong people. Then he stopped talking. They turned the lights out and slammed the door and left him there while they went down to cell #4. This man had been so fucked that when they grabbed his foot through the cell bars he began screaming and crying. After praying to Allah he moans a constant short Ah, Ah every few seconds for the rest of the night.

I don’t know what they did to this guy. The first one remained handcuffed for maybe 1 ½-2 hours until he started yelling for Allah. So they went back in and handcuffed him to the top bunk on either side of the bed while he stood on the side. He was there for a little over an hour when he started yelling again for Allah. Not many people know this shit goes on. The only reason I want to be there is to get the pictures and prove that the US is not what they think. But I don’t know if I can take it mentally. What if that was me in their shoes.

Note how she closes the letter. If her descriptions about the present she was living through seem chilling, imagine the implications of her prediction about the future these techniques will lead to:

These people will be our future terrorist. Kelly, its awful and you know how fucked I am in the head. Both sides of me think its wrong. I thought I could handle anything. I was wrong.

Sabrina