Secret ‘torture memo’ gave legal cover to interrogators who acted in ‘good faith’

Jason Leopold | Online Journal, July 31, 2008

A Justice Department legal opinion issued in August 2002 advised the CIA that its interrogators would not be prosecuted for violating anti-torture laws as long as they acted in "good faith" while using brutal techniques to obtain information from suspected terrorists, according to a previously undisclosed memo released publicly last Thursday. The closely guarded Aug. 1, 2002, memo provided the Bush administration with the legal framework to use "alternative interrogation methods" against suspected terrorists captured in the war on terror. The heavily redacted document, obtained by the American Civil Liberties Union under a Freedom of Information Act request, was signed by then Assistant Attorney General Jay Bybee and specifically outlined approved methods the CIA could use, such as waterboarding, during interrogations. Waterboarding has been regarded as torture since the days of the Spanish Inquisition. "To validate the statute, an individual must have the specific intent to inflict severe pain or suffering," the Aug. 1, 2002 memo says. "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture." The Bybee memo was written by John Yoo, a former deputy attorney general at the DOJ’s Office of Legal Counsel (OLC), and preceded a second August 2002 legal opinion about CIA interrogation methods leaked to the media in 2004. Both memos were later rescinded. The Aug. 1, 2002, legal opinion was based on a statute governing health benefits when Yoo provided the White House with a legal opinion defining torture, according to a former Justice Department official. Yoo’s legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture. Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, Yoo wrote, therefore was not considered to be torture. "That statute defined an 'emergency medical condition’ that warranted certain health benefits as a condition 'manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function," Jack Goldsmith, the former head of OLC, wrote in his book, The Terror Presidency "The health benefits statute’s use of 'severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define 'severe pain.’ Rather it used the term 'severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like. . . . OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark." Yoo, who now teaches at the University of California at Berkeley, also drafted a March 14, 2003 document, nearly identical to the August 2002 memo he authored, that essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners. The ACLU under a FOIA request also obtained that document earlier this year. Continued . . .