5 Things You Should Know About The Torture Memos

By Judge Andrew Napolitano
FOX News Senior Judicial Analyst
April 21st, 2009 5:03 PM Eastern
Courtesy Of The Fox News Forum

No. 1. I have read the 175 pages of legal memoranda (”the memos”) that the Department of Justice (DoJ) released last week. They consist of letters written by Bush DoJ officials to the Deputy General Counsel of the CIA concerning the techniques that may be used by American intelligence agents when interrogating “high value” detainees at facilities outside the U.S. The memos describe in vivid, gut-wrenching detail the procedures that the CIA apparently inquired about. The memos then proceed to authorize every procedure asked about, and to commend the CIA for taking the time to ask.

No. 2. In the process of explaining to the CIA Deputy General Counsel just what his folks could do in order to extract information from uncooperative detainees, it is immediately apparent that the writers of the memos are attempting to find snippets of language from other memoranda that they or their colleagues have prepared and from unrelated judicial opinions that justify everything that the CIA wants to do.

This is not rocket science and it is not art. Everyone knows torture when they see it.

The bias in favor of permitting torture may easily be concluded from a footnote in one of the memos. In that footnote, the author, now-federal judge Jay Bybee, declines to characterize such notorious medieval torture techniques as the thumbscrew and the rack as “torture.” With that incredible mindset, he proceeds to do his Orwellian best to define away such terms as “pain,” “suffering,” and “inhumane” in such a way as to require that the interrogators produce near death experiences in order to have their behavior come under the proscriptions of the federal statute prohibiting torture, and the Convention (treaty) Against Torture, which was negotiated by and signed in behalf of the U.S. by President George H.W. Bush.

No. 3. The logic in the memos is simple: The government may utilize the ten procedures inquired about (all of which were publicly known except confinement on a coffin, bound and gagged, and in the presence of insects), so long as no one dies or comes close to death. This conclusion is startling in the case of walling (banging a detainee’s head against a solid but moveable wall) and waterboarding (near drowning) since the federal government’s own physicians, cited in the memos themselves, have concluded that both techniques are always a near occasion of death. The conclusion is also startling since it fails to account for numerous federal and state prosecutions, and prosecutions in Thailand — where these torture sessions apparently occurred — that have defined torture according to its generally accepted meaning:

“Any intentionally inflicted cruel or inhumane or degrading treatment, unauthorized by a court of law, perpetrated for the punishment of the victim, to extract statements from the victim, or to gratify the perpetrator.”

This universally-accepted definition makes no reference and has no condition that anything goes short of a near occasion of death.

No. 4. The memos also fail to account for the Geneva Conventions, which the U.S. Supreme Court has ruled govern American treatment of all foreign detainees, lawful or unlawful. The third of those conventions PROHIBITS TOUCHING the detainee in any way, other than for the purpose of moving him from place to place, if he refuses to go voluntarily and when told to do so.

No. 5. The memos place Attorney General Holder, who argued for their release, in an untenable situation. He has stated under oath, at his confirmation hearings, that waterboarding is torture and torture is prohibited by numerous federal laws. He has also taken an oath to uphold all federal laws, not just those that are politically expedient from time to time. He is correct and he must do his moral and legal duty to reject any Nuremberg defense. This is not rocket science and it is not art. Everyone knows torture when they see it; and no amount of twisted logic can detract from its illegal horror, its moral antipathy, and its attack at core American values.