Victoria Toensing: Critics Still Haven't Read the 'Torture' Memos
[Ms. Toensing was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration. ]
Sen. Patrick Leahy wants an independent commission to investigate them. Rep. John Conyers wants the Obama Justice Department to prosecute them. Liberal lawyers want to disbar them, and the media maligns them.
What did the Justice Department attorneys at George W. Bush's Office of Legal Counsel (OLC) -- John Yoo and Jay Bybee -- do to garner such scorn? They analyzed a 1994 criminal statute prohibiting torture when the CIA asked for legal guidance on interrogation techniques for a high-level al Qaeda detainee (Abu Zubaydah).
In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard: Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.
The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law's definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.
Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes.
In the summer of 2002, the CIA outlined 10 interrogation methods that would be used only on Abu Zubaydah, who it told the lawyers was "one of the highest ranking members of" al Qaeda, serving as "Usama Bin Laden's senior lieutenant." According to the CIA, Zubaydah had "been involved in every major" al Qaeda terrorist operation including 9/11, and was "planning future terrorist attacks" against U.S. interests.
Most importantly, the lawyers were told that Zubaydah -- who was well-versed in American interrogation techniques, having written al Qaeda's manual on the subject -- "displays no signs of willingness" to provide information and "has come to expect that no physical harm will be done to him." When the usual interrogation methods were used, he had maintained his "unabated desire to kill Americans and Jews."
The CIA and Department of Justice lawyers had two options: continue questioning Zubaydah by a process that had not worked or escalate the interrogation techniques in compliance with U.S. law. They chose the latter....
Read entire article at WSJ
Sen. Patrick Leahy wants an independent commission to investigate them. Rep. John Conyers wants the Obama Justice Department to prosecute them. Liberal lawyers want to disbar them, and the media maligns them.
What did the Justice Department attorneys at George W. Bush's Office of Legal Counsel (OLC) -- John Yoo and Jay Bybee -- do to garner such scorn? They analyzed a 1994 criminal statute prohibiting torture when the CIA asked for legal guidance on interrogation techniques for a high-level al Qaeda detainee (Abu Zubaydah).
In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard: Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.
The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law's definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.
Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes.
In the summer of 2002, the CIA outlined 10 interrogation methods that would be used only on Abu Zubaydah, who it told the lawyers was "one of the highest ranking members of" al Qaeda, serving as "Usama Bin Laden's senior lieutenant." According to the CIA, Zubaydah had "been involved in every major" al Qaeda terrorist operation including 9/11, and was "planning future terrorist attacks" against U.S. interests.
Most importantly, the lawyers were told that Zubaydah -- who was well-versed in American interrogation techniques, having written al Qaeda's manual on the subject -- "displays no signs of willingness" to provide information and "has come to expect that no physical harm will be done to him." When the usual interrogation methods were used, he had maintained his "unabated desire to kill Americans and Jews."
The CIA and Department of Justice lawyers had two options: continue questioning Zubaydah by a process that had not worked or escalate the interrogation techniques in compliance with U.S. law. They chose the latter....