The investigation was launched after an article published click here by this reporter last week revealed that the author of the August 2002 legal opinion, John Yoo, a former attorney in the Department of Justice's Office of Legal Counsel (OLC), relied on a health benefits statute to form the legal basis for waterboarding and other "enhanced" interrogation techniques, an OPR official at OPR said in an interview this afternoon. The official requested anonymity because he said he was not permitted to discuss the probe.
Last week, Sen. Dick Durbin, D-Illinois, wrote a letter to the Justice Department's inspector general and OPR requesting an investigation into the department's authorization of waterboarding, specifically, how Yoo and others in the OLC formed the legal basis for waterboarding and whether DOJ standards and policies were met when OLC reached it's conclusions on the technique.
"Did Justice Department officials who advised the CIA that waterboarding is lawful perform legal work that meets applicable standards of professional responsibility and internal Justice Department policies and standards? For example, did these officials consider all relevant legal precedents, including those that appear to contradict directly their conclusion that waterboarding is lawful?" stated Durbin's Feb. 12 letter to DOJ Inspector General Glen Fine.
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.
Jack Goldsmith, the former head of OLC said that Yoo, a former OLC attorney who now teaches at the University of California at Berkeley, arrived at that definition by relying on statute written in 2000 related to health benefits.
"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," Goldsmith 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."
According to Yoo's legal opinion, waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, was not considered to be torture because it did not result in "death, organ failure, or impairment of bodily function."
In a letter sent to Durbin Monday, H. Marshall Jarrett, the head of OPR, said his office intends to question Yoo, and his former boss, Jay Bybee, the former head of OLC, now a federal appeals court judge in San Francisco.
"Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys," Jarrett's letter says, adding that his office may release the findings of the investigation publicly.
Goldsmith, who was tapped to head the OLC in October 2003, determined after eight weeks as head of OLC that Yoo's "torture memo" was "legally flawed," sloppily written, and called into question whether the White House was provided with sound legal advice.
Goldsmith claims that after reviewing various arguments and opinions in Yoo's August 2002 "torture memo," particularly "any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-Chief authority in the president, has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law."
"On an issue that demanded the greatest of care, OLC's analysis of the law of torture in the Aug. 1, 2002, opinion and the March 2003 opinion was legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary," Goldsmith wrote in his book.
Yoo's legal opinions virtually gave President Bush unilateral authority to launch preemptive military strikes against any regime suspected of having ties to terrorist groups, provided Bush with the power to begin a covert domestic surveillance program, and authorized the president to allow CIA agents to interrogate alleged terrorist detainees using brutal methods of interrogation as long as it didn't result in death or maiming of the prisoner.
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