George W. Bush's Justice Department said subjecting a person to the near drowning of waterboarding was not a crime and didn't even cause pain, but Ronald Reagan's Justice Department thought otherwise, prosecuting a Texas sheriff and three deputies for using the practice to get confessions.
Federal prosecutors secured a 10-year sentence against the sheriff and four years in prison for the deputies. But that 1983 case - which would seem to be directly on point for a legal analysis on waterboarding two decades later - was never mentioned in the four Bush administration opinions released last week.
The failure to cite the earlier waterboarding case and a half-dozen other precedents that dealt with torture is reportedly one of the critical findings of a Justice Department watchdog report that legal sources say faults former Bush administration lawyers - Jay Bybee, John Yoo and Steven Bradbury - for violating "professional standards."
Bybee, Yoo and Bradbury also shocked many who have read their memos in the last week by their use of clinical and legalistic jargon that sometimes took on an otherworldly or Orwellian quality. Bybee's August 1, 2002, legal memo - drafted by Yoo - argued that waterboarding could not be torture because it does not "inflict physical pain."
During the procedure, a subject is strapped down to a bench with his head lower than his feet and his face covered by a cloth that is then saturated with water, cutting off his breathing and inducing the panic reflex that a person feels while drowning.
"You have informed us that this procedure does not inflict actual physical harm," Bybee wrote. "Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain.... The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."
Bush administration officials approved CIA waterboarding for three "high-value" detainees, including Abu Zubaydah (believed to be an al-Qaeda logistics operative) and Khalid Sheikh Mohammed (known as KSM, the alleged mastermind of the 9/11 attacks). Zubaydah was waterboarded at least 83 times and KSM at least 183 times, according to one Justice Department memo.
Bybee, whose memo gave legal cover for the initial use of waterboarding and nine other brutal interrogation methods, said his opinion - as assistant attorney general in charge of the Office of Legal Counsel, which advises presidents on the limits of their legal powers - represented "our best reading of the law." He cited scant history for the Convention Against Torture, which took effect in 1987.
"However, you should be aware that there are no cases construing this statute, just as there have been no prosecutions brought under it," Bybee wrote.
The Convention Against Torture makes it a crime for any "person acting under the color of law" to "inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."
That law was not in existence when the Texas sheriff, James Parker, and his deputies were prosecuted and sentenced in the 1980s. But Bybee, Bradbury and Yoo had a duty to their legal profession to cite the case as it would have changed the substance of their legal opinions, said Scott Horton, a human rights attorney and constitutional expert.
"Any competent legal adviser would, among other things, have looked at the techniques themselves and checked to see how they have been treated in prior cases," Horton said in an email. "Obviously the Anti-Torture Statute itself is a very recent invention and it has no enforcement history, so saying that and then suggesting on this basis that the situation is tabula rasa is highly disingenuous."
Horton suspects that Bybee, Yoo and Bradbury were well aware of the case law, but simply chose to ignore it in order to give the Bush administration what it had asked for.
"To take one example, there was a court-martial addressing the practice of waterboarding from 1903, a state court case from the twenties, a series of prosecutions at the [post-World War II] Tokyo Tribunal (in many of which the death penalty was sought) and another court-martial in 1968," Horton said. "These precedents could have been revealed in just a few minutes of computerized research using the right search engines. It's hard to imagine that Yoo and Bybee didn't know them.