Judge Bybee on His Torture Memos: Don’t Sweat the Technique

So much for the quid pro quo explanation. Jay Bybee, the former Office of Legal Counsel chief who issued the 2002 torture memos and who has since become a federal judge, issued a statement saying he mostly stands by his work. The New York Times:

Given the widespread criticism of the memorandums, he said he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions.

But he said: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

Well, as long as other administration lawyers agreed, then. But if Bybee’s really standing by this stuff, it would be worthwhile to hear him explain how he wrote, “We find that the use of the waterboard constitutes a threat of imminent death,” which is a “predicate act” that violates the law he’s interpreting in the August 1, 2002 “techniques” memo but still finds that it “would not constitute torture within the meaning of the statute.” How to square that circle? All the memo says is that to constitute “severe” mental pain or suffering, a technique has to inflict mental damage lasting “months or years.” And how did Bybee determine the waterboard didn’t do that?

Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard.

OK then! Bybee asked the CIA, which is coming to him for approval of the technique, for whether it would be long-lasting. And they said they’d looked into it and found it wouldn’t be, despite a long and established medical history of post-traumatic stress experienced by torture survivors. And if it needs to be said again, SERE students are volunteers, not detainees. Bybee is providing the sort of due diligence that falls in the finest traditions of North Korean jurisprudence.