The Bybee Memo- The Very Anatomy of Evil

( – promoted by buhdydharma )

The Dog is not a believer in many things but gods is one particular category. As such he almost never uses the word evil, but there are times when this religiously based word is the only apt one in English. Today the Dog has seen evil, in the form of a memo which does a legal tap dance to justify a torture technique known as waterboarding.  

Waterboarding has to be one of the most heinous tortures invented by man. It has been used in many societies for the very simple reason; anyone subjected to it will be in such fear, such pain that they will quite literally do anything to make the torturers stop. This was true in Inquisition, it was true in WWII and it is still true today.

The basic procedure is to tie a victim (and lets not pretend that anyone who has this done to them is anything but a victim) to a board with their head below the level of their feet. A clothe is placed over their mouth and nose and then water is poured onto the cloth. It reduces the amount of oxygen getting into the victims system, and as the CO2 level rises the body reacts as if it is drowning.  This happens even to people who know they are not going to be killed, who have consented to this procedure as part of training. They know that help is there and they are in the hands of their fellow soldiers, yet they still experience pain and panic.

Abu Zubaydah was in our custody. The CIA believed they could get more information out of him if they were allowed to do 10 specific techniques but they wanted to know if it would be torture. One of them was sure to be waterboarding; this is clear from the torture memo released today. No matter what other techniques that CIA was going to perform, this would be the calumniating technique. They asked the Justice Department to rule for them whether a technique which had been considered torture for centuries, a technique which the United States had prosecuted and executed people for carrying out was torture.

Instead of point the above facts out Mr Bybee went on a legal tail chase to find a way to justify it. He looked at the fact that we had used this technique for training our soldiers to resist in the SERE program. He got trainers to say they had found very little instances of permeate psychological or physical harm from being trained this way. Then he looked at that law and found that you could not use a technique which would cause “sever physical or mental pain”.

Then he wrote this:

As we understand it, when the warterboard is used, the subjects body responds as if the subject were drowning – even though the subject may be well aware that is in fact not drowning. You have informed us this procedure does not inflict physical harm. Thus, although the subject may experince the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. As we explained in the Section 2304A Memorandum, “pain and suffering” as used in Section 2340 is best understood as a single concept, not distinct concepts of “pain” as distingished from “suffering”.


The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view inflict “sever pain and suffering”. Even if one were to parse the statute more finely to attempt to treat “suffering” as a distinct concept, the waterboard could not be said to inflict sever suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.

You can find the whole thing at this link

Do you see what he has done? He is saying because waterboarding does not actually harm you physically (meaning you a likely to survive it) you could not be suffering pain. This is a total fallacy, as anyone who has held there breath underwater for a long time can tell you. This is where evil creeps in. To willfully ignore common place facts in order to justify a known torture technique can be nothing less than evil.

It is an attorney’s job, when acting as defense council, to provide any theory which may be accepted as justification or exculpation for the defendants accused crime. This is a good and important aspect of our system of justice. However, it is also an attorney’s job to advice his client if asked what is legal and what is not. This is based on more than just the law as we can see above. Mr. Bybee blithely accepts, against common experience, the claim that waterboarding does no harm so can cause no pain.

This goes beyond the practice of law. This is the very definition of the malpractice of law. Even if Mr. Bybee were to be allowed a little leeway in this acceptance of the CIA’s assertion of no harm, he as an attorney should not have written a justification of a known criminal act, both under US and International Law. His response should have been there is no legal way to do this, if you do this you will be culpable and you should not even think of doing it.

Mr. Bybee should have seen a red flag when the US Military trainers asserted this technique was irresistible. Torture by its very definition is irresistible, it is so painful, so horrifying anyone subjected to it will do or say anything to prevent it from continuing. Instead, he wrote this memo.

The Dog understand it is the Obama administrations position those who carried out these acts while relying on this reasoning will not be investigated or indicted. This is a disappointment, but can, in some political necessity fashion be understood if not accepted. However, this is not true for Mr. Bybee. This is a man who, there is no other way to say it, willfully justified evil.

He must be investigated and punished. To fail to do so not only guarantees this will happen again, it completely makes a mockery of our system of law and justice. We can not allow this to go unchallenged.

The floor is yours.  


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  1. My mind has been polluted reading this memo.  

  2. … but finished the first one.  In that one, Bybee also claims that if the “intent” is not to really do damage, then it’s ok to waterboard.

    My jaw dropped when I read that.

    This is a hard day.

  3. biggest pile of elephant manure Ive ever seen.

    Thanks for wading through it, Dog, (so I dont have to, I dont think I can).

    btw, Keith O just had an excellent Special Comment.

  4. Hate is Love

    Slavery is Freedom

    Service is Mandatory

    Arbeit Macht Frei


    Torture Doesn’t Hurt!

  5. here.

    • Arctor on April 17, 2009 at 03:57

    shouldn’t federal judge Bybee be immediately impeached for producing this crap? What of that Dennis Kucinich, can we scrape up some articles of impeachment for this dog?

  6. Imagine 300 million Americans knowing their entire history is complete bullshit.  Torture, merely that 30 second sound byte of today even after nano thermite found at the trade center produced a big yawn is just a diversionary issue.  JFK’s grassy knoll is indeed Mt Everest.

    • robodd on April 17, 2009 at 04:41

    Hannah Arendt is spinning in her grave.

    • geomoo on April 17, 2009 at 05:18

    I wanted to clarify one point in the Dog’s righteous rant.  The CIA did not request this, as the administration has tried to assert.  The administration began talking and thinking about torture, then sent the word out to use it.

    Phillipe Sands detailed this issue and others masterfully in his Vanity Fair article from 2008, The Green Light.  In reacting to the Abu Ghraib scandal, the administration trotted out their first bs torture narrative on June 22, 2004.  Sands details the four lies Alberto Gonzales, Jim Haynes, and Daniel Dell’Orto carefully constructed that day.  The request from the field was one of them.  Here’s the administration version:

    The second element of the administration’s narrative dealt with the specific source of the new interrogation techniques. Where had the initiative come from? The administration pointed to the military commander at Guantánamo, Major General Michael E. Dunlavey. Haynes would later describe him to the Senate Judiciary Committee, during his failed confirmation hearings for a judgeship in 2006, as “an aggressive major general.” The techniques were not imposed or encouraged by Washington, which had merely reacted to a request from below. They came as a result of the identification locally of “key people” at Guantánamo, including “a guy named al-Qahtani.” This man, Detainee 063, had proved able to resist the traditional non-coercive techniques of interrogation spelled out in the Army Field Manual, and as the first anniversary of 9/11 approached, an intelligence spike pointed to the possibility of new attacks. “And so it is concluded at Guantánamo,” Dell’Orto emphasized, reconstructing the event, “that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” A request was sent from Guantánamo on October 11, 2002, to the head of the U.S. Southern Command (SouthCom), General James T. Hill. Hill in turn forwarded Dunlavey’s request to General Richard Myers, the chairman of the Joint Chiefs of Staff. Ultimately, Rumsfeld approved “all but three of the requested techniques.” The official version was clear: Haynes and Rumsfeld were just processing a request coming up the chain from Guantánamo.

    The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantánamo led to abuses at Abu Ghraib.

    The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse.

    Here is a time line:

    September 11, 2002 – Anniversary of 9/11.  al-Qatahni not providing information to interrogators.

    December 2001 – Haynes tells CentCom admiral in charge of detainees to “take the gloves off” and do whatever he wanted in the interrogation of John Walker Lindh.

    January 9, 2002 – John Yoo and Robert Delahunty give Haynes prepared opinion that the president is not bound by traditional international-law prohibitions.  Colin Powell and his counsel oppose this.

    January 25, 2002 – Gonzales signs memo to president supporting Haynes and Rumsfeld over Powell.

    January, 2002 – Feith uses lawyerly double talk to trick General Richard Myers, chairman of the Joint Chiefs of Staff, into thinking the Geneva Convention will be followed while simultaneously recommending to Rumsfeld and Bush that it offered no protection to the detainees at Guantanamo.

    February 7, 2002 – Presidential order gives determination that, legally, none of the detainees at Guantanamo can rely on protection granted by the Geneva Convention, Article 3.

    February, 2002 – Dunlavey placed in charge of military interrogations at Guantanamo by Rumsfeld.  In violation of the chain of command, he is told to report directly to Rumsfeld. “I don’t care who he is under.  He works for me.”

    March, 2002 – High-ranking al-Qaeda official captured in Pakistan.  Tenet wants to use aggressive interrogation but worries about criminal prosecution.  Requests guidance.  Yoo-Bybee Memo is response to this request.

    June, 2002 – Pressure applied from the highest levels to get information from al-Qatahni.

    August 1, 2002 – Yoo-Bybee Memo (with input from Addington) declares that physical torture occurs only when the pain is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” and that mental torture requires “suffering not just at the moment of infliction but . . . lasting psychological harm.”

  7. How can this asshat morally justify what he wrote? He could have just said “you want me to justify WHAT?” Then he should have resigned in disgust.

    Now I question his humanity. (Which I just did over on Daily Kos, btw.)

    These memos are going to give me nightmares.

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