The Torture Memos

On August 1, 2002, an Office of Legal Council (OLC) memo signed by Jay S. Bybee and drafted by John Yoo, issued perhaps one of the most important documents that opened the gateway for the overt and widespread use of torture in America’s ‘war on terror’. Referred to today as ‘the torture memo’, the memo identified the interrogation techniques that could be used on prisoners without violating the 1994 federal statute criminalizing torture.* The latter law was put together as part of the obligation under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment** which was signed in 1988 by Ronald Reagan. Article 2.2 of the Convention unequivocally states, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The US federal statute stated that if a person subjected a prisoner in his custody to an interrogation technique ‘specifically intended to inflict severe mental pain or suffering’, could be prosecuted and sentenced to up to twenty years in prison or even death. However, the Bush administration argued that the Geneva Conventions did not apply to the ‘war on terror’, and that prisoners could be held without the protection of the Geneva Conventions.

This view confirmed by then President Bush on February 7, 2002 via an executive order, and was not challenged until the Supreme Court reminded the government, in Hamdan v. Rumsfeld in June 2006, that Common Article 3 of the Geneva Conventions, which prohibits torture and “outrages upon personal dignity, in particular humiliating and degrading treatment,” applies to all prisoners seized in wartime.

The key linguistic trick in the torture memos was to interpret the phrase ‘specifically intended’ and argue that torture was illegal under the federal statute if the interrogator prime aim was to harm the prisoner, and not the obtaining of information. Hence, if the interrogators intention was to extract information, then s/he was not liable under the anti-torture statute. The memos also went on to define the meaning of the term ‘severe pain’, narrowing its interpretation to mean ‘pain causing death, organ failure, or permanent damage resulting in loss of significant bodily functions’, and argued that mental suffering must be prolonged to be severe.

These linguistic tricks – part of a series of the manipulation of language that become essential for America’s descent into lawlessness – allowed the OLC to give the green light to a CIA request to apply ‘enhanced interrogation techniques’ to Abu Zubaydah. Captured in Pakistan in March 2002, Abu Zubaydah and was said to be a high-ranking Al-Qaeda operative. The CIA believed that he had time sensitive information and needed a legal loophole to use illegal interrogation techniques to get him to talk. The decision to go ahead with Abu Zubaydah’s torture were made with the full involvement of top Bush administration officials, including the attorney general, the national security advisor and the White House counsel. The OLC was asked to prepare the torture memo by members of the administration.

As Jonathan Hafetz has argued ‘language was distorted, logic twisted, and morality abandoned in order to provide legal impunity – a ‘golden shield’…for state sanctioned torture. Though Bybee and Yoo drafted the memo, they were approved by White House counsel’s office, attorneys at the National Security Council and the vice president’s office. All of the Bush administration top officials including Condoleeza Rice, Donald Rumsfeld, Vice President Dick Cheney and Secretary of State Colin Powell met at various times and discussed the techniques being approved in the memos. And they knew that what they were collaborating in was illegal and a crime. The memo lays out in painstaking details, with a language that is technocratic speak at its best, the specific methods of torture that can be used, and precisely the way they can be used. The language has been described as ‘the precise bureaucratese favored by dungeon masters throughout history’. John Yoo became the principal architect of America’s increasing and consistent use of torture. A 2003 memo, and later a 2005 memo continued to veil the brutality of the practices that were being used behind a bureaucratic, technocratic and obtuse language that manipulated language and common sense. And each time the memos acknowledged that what was being done may violate international law, but that America’s unique security concerns made these laws inapplicable. Basically, as Hafetz has argued, the ‘war on terror’ became a licence for torture.

The OCL’s interpretation of the law was severely criticized. The former dean of Yale Law School, Harold H. Koh called them ‘the most clearly wrong legal opinion’ he had ever read. Thomas J. Romig, the US army’s judge advocate general, called John Yoo’s interpretations and conclusions ‘downright offensive’. A Justice Department investigation and internal ethics report ultimately found that both Yoo and Bybee had committed professional misconduct through slipshod reasoning and their failure to offer objective and independent legal advice. Though the 2002 OLC opinion was withdrawn as a result of the severe opposition, a 2004 OLC opinion that replaced it continued to define torture in very narrow terms and failed to challenge the legality of the 2002 memo. In 2005 May further memos issued continued to give legal cover for CIA interrogation techniques, and continued to justify the use of techniques outlined in the 2002 memos.

* Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No 103-236, 108 Stat. 463 (1994) (codified at 18 U.S.C. §§ 2340 – B)

** Convention against Torture and other Cruel, Inhuman or Degrading Treatmnet of Punishment, art. 16, December 10, 1984, S. Treaty Doc. No 100-20, 1465 U.N.T.S. 85.