Margolis decided that an internal report into the conduct of John Yoo and Jay S. Bybee, who wrote the notorious memos in August 2002, which attempted to redefine torture so that it could be used by the CIA, was mistaken in concluding that both men were guilty of "professional misconduct," and should be referred to their bar associations for disciplinary action.
Instead, Margolis concluded, in a memo that shredded four years of investigative work by the Office of Professional Responsibility (OPR), the DOJ's ethics watchdog, that Yoo and Bybee had merely exercised "poor judgment." As lawyers in the Office of Legal Counsel (OLC), which is charged with providing objective legal advice to the executive branch on all constitutional questions, Yoo and Bybee attempted to redefine torture as the infliction of physical pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," or the infliction of mental pain which "result[s] in significant psychological harm of significant duration e.g. lasting for months or even years."
Yoo, notoriously, had lifted his description of the physical effects of torture from a Medicare benefits statute and other health care provisions in a deliberate attempt to circumvent the UN Convention Against Torture, signed by President Reagan in 1988 and incorporated into US federal law, in which torture is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person ...
Obsessed with finding ways in which "severe pain" could be defined so that the CIA could torture detainees and get away with it, Yoo drew on some truly revolting examples of physical torture, citing a particularly brutal case, Mehinovic v. Vuckovic, in which, during the Bosnian war, a Serb soldier named Nikola Vuckovic had tortured his Bosnian neighbor, Kemal Mehinovic, with savage and sadistic brutality. Yoo dismissed the possibility that other torture techniques - waterboarding, for example, which is a form of controlled drowning, and prolonged sleep deprivation - might cause "significant psychological harm of significant duration," or physical pain rising to a level that a judge might regard as torture.
In both of his definitions, however, Yoo was clearly mistaken. No detailed studies have yet emerged regarding the prolonged psychological effects of the torture program approved by Yoo and Bybee, largely because lawyers for the "high-value detainees" in Guanta'namo have been prevented - first under Bush, and now under Obama - from revealing anything publicly about their clients.
However, lawyers for Ramzi bin al-Shibh, who was charged in the Bush administration's military commissions, made a good show of demonstrating that bin al-Shibh is schizophrenic and on serious medication, when they argued throughout 2008 that he was not fit to stand trial, and I have seen no evidence to suggest that bin al-Shibh was in a similar state before his four years in secret CIA prisons.
An even more pertinent example is Abu Zubaydah, a supposed high-value detainee, held in secret CIA prisons for four and a half years, for whom the torture program was originally developed. Zubaydah's case may well be the most shocking in Guanta'namo, because, although he was subjected to physical violence and prolonged sleep deprivation, was confined in a small box and was waterboarded 83 times, the CIA eventually concluded that he was not, as George W. Bush claimed after his capture, "al-Qaeda's chief of operations," but was, instead, a "kind of travel agent" for recruits traveling to Afghanistan for military training, who was not a member of al-Qaeda at all.
Zubaydah was clearly mentally unstable before his capture and torture, as the result of a head wound sustained in Afghanistan in 1992, but as one of his lawyers, Joe Margulies, explained in an article in the Los Angeles Times last April, his subsequent treatment in US custody has caused a profound deterioration in his mental health that would certainly constitute "significant psychological harm of significant duration." Margolis wrote:
No one can pass unscathed through an ordeal like this. Abu Zubaydah paid with his mind. Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah's mental grasp is slipping away. Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.
Moreover, when it came to defining physical torture, the OPR report's authors noted that, as so often in the memos, Yoo had ignored relevant case history. The key passage in the report deals with the US courts' decisions regarding the Torture Victim Protection Act (TVPA). Yoo had drawn on Mehinovic for his description of physical torture "of an especially cruel and even sadistic nature," and, as the authors noted, he also argued that only 'acts of an extreme nature' that were 'well over the line of what constitutes torture' have been alleged in TVPA cases."
The authors continued:
Thus, the memorandum asserted, "there are no cases that analyze what the lowest boundary of what constitutes torture."[sic]
That assertion was misleading. In fact, conduct far less extreme than that described in Mehinovic v. Vuckovic was held to constitute torture in one of the TVPA cases cited in the appendix to the Bybee memo. That case, Daliberti v. Republic of Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for five days under extremely bad conditions, while being threatened with bodily harm, interrogated and held at gunpoint, constituted torture with respect to one claimant.
A close inspection of Daliberti (which dealt with US personnel seized by Iraqi forces between 1992 and 1995) is revealing, as the DC District Court held, "Such direct attacks on a person and the described deprivation of basic human necessities are more than enough to meet the definition of 'torture' in the Torture Victim Protection Act." The judges based their ruling on the following: