The Aug. 1, 2002, opinion, widely referred to as the “Torture Memo,” was written by Jay Bybee, an assistant attorney general at the OLC, and John Yoo, Bybee’s deputy. It was addressed to Gonzales and stated that unless the amount of pain administered to a detainee during an interrogation results in injury "such as death, organ failure, or serious impairment of body functions" than the technique could not be defined as torture.
Additionally, the memo said CIA 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.
“To validate the statute, an individual must have the specific intent to inflict severe pain or suffering,” the memo said. “Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture.”
The memo was drafted the same month Abu Zubaydah was subjected to waterboarding.
Jack Goldsmith, who succeeded Bybee as head of the OLC in October 2003, quickly determined that the Aug. 1, 2002, memo was “sloppily written” and “legally flawed” and withdrew it.
Administration critics also have noted that actions are not made legal simply by having friendly lawyers give favorable opinions.
“You can’t just suddenly change something that is illegal into something that is legal by having a lawyer write an opinion that saying it’s legal,” said Sen. Carl Levin, chairman of the Senate Armed Services Committee whose panel spent two years investigating the Bush administration’s interrogation policies.
Jameel Jaffer, director of the American Civil Liberties Union National Security Project, said Cheney used the Justice Department to “twist” the law “and in some cases ignored it altogether, in order to permit interrogators to use barbaric methods that the U.S. once prosecuted as war crimes.”
Michael Ratner, president of the Center for Constitutional Rights, said, “there must be consequences for [these] illegal activities.” He added, “A special prosecutor should be appointed. To do otherwise is to send a message of impunity that will only embolden future administrations to again engage in serious violations of the law.”
The Justice Department’s Office of Professional Responsibility (OPR) is close to wrapping up a formal investigation to determine whether agency attorneys, including Yoo and Bybee, provided the White House with poor legal advice when they drafted the legal opinions.
The waterboarding of Abu Zubaydah, Al Nashiri and Kalid Sheikh Mohammed was videotaped, but those records were destroyed in November 2005 after the Washington Post published a story that exposed the CIA's use of so-called "black site" prisons overseas to interrogate terror suspects.
John Durham, an assistant attorney general in Connecticut, was appointed special counsel earlier this year to investigate the destruction of that videotape as well as destroyed film on other interrogations.
Despite the torture criticism, Cheney said he has no regrets about the interrogation methods that he signed off on, claiming they were “directly responsible for the fact that we've been able to avoid or defeat further attacks against the homeland for seven and a half years.”
Cheney added, “I feel very good about what we did. I think it was the right thing to do. If I was faced with those circumstances again, I'd do exactly the same thing.”
Cheney’s remarks to the Washington Times were part of a two-week media blitz that has sought to highlight the Bush administration’s “accomplishments.”
The White House has published two lengthy reports, “Highlights of Accomplishments and Results of the Administration of George W. Bush,” and “100 Things Americans May Not Know About the Bush Administration Record” in an attempt to change the emerging historical consensus about a failed presidency.
However, Cheney’s blasé responses to questions about torture have instead fed growing demands for a criminal investigation against Cheney and other Bush administration officials.
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