As we pointed out earlier, the Washington Post has published on its Web site the 2002 DOJ memo that advised torture of prisoners could be justified and presented such a narrow definition of torture that the treatment "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
(This is the memo John Ashcroft refused to disclose last week when angry senators demanded it in an amazing exchange on Capitol Hill that largely got lost in the din surrounding Reagan's funeral.) The document was signed by Jay S. Bybee, the former head of the Justice Department's Office of Legal Counsel, who is now a federal judge on the 9th Circuit Court of Appeals, and represents a binding legal opinion on government policy on interrogations, constituting legal advice to White House Counsel Alberto Gonzales, who requested the document and, you may remember, wrote his own memo to the president. A Pentagon draft report, published by the Wall Street Journal, also relied on much of the legal logic in this DOJ memo.
University of Miami law professor Michael Froomkin analyzes the DOJ memo in depth on his blog. Among his impressions: "This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain. Nowhere do the authors say 'but this would be wrong.' ... In the views of the author(s), there's basically nothing Congress can do to constrain the President's exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I'm sure our allies will be just thrilled to hear that. And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?"
Froomkin concludes: "Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it -- they're people who really have the most to answer for."
And on that topic of the people who have the most to answer for, let's revisit what Sen. Ted Kennedy had to say last week.
Kennedy: "In other words, the president of the United States has the responsibility ... This is what directly results when you have that kind of memoranda out there. And it says that it's all because of executive authority and executive power. And it seems how can any one other conclude, how can any one else conclude that it's the president of the United States then that has the ultimate authority and responsibility in the issuing of these order of the failure to stop these kind of activities?"
President Bush insists that after receiving all of this advice from the highest-ranking lawyers in his administration on how to twist legal logic to get around domestic and international laws on torture, that his directives were to "adhere to the laws." As a reporter who questioned Bush last week put it: "When you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting," adding: "This is a moral question: Is torture ever justified?"
The president ignored the question of morality and chose a legalistic answer. Bush's response: "Look, I'm going to say it one more time. If I -- maybe -- maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of -- from me to the government."
It's not much comfort to look at the laws on the books, as the president suggests, when all of the memos we've seen so far indicate his lawyers were devising arguments that those laws could be ignored by an executive whose war time powers are, in the lawyers' views, boundless. Look for more scrutiny in the coming days and weeks on President Bush as the steady stream of torture memos point to culpability in the highest levels of government.