You Can't Even Torture Some of the People Some of the Time

Hey everybody, there’s good news on the torture front. First of all, we definitely do not torture. This is the official opinion of the Bush administration on August 1, 2002, in a memo released just yesterday by the Obama White House.

The August 2002 memo’s author, Jay Bybee (who is a federal appellate judge now, if that makes you feel any better) was head of the Justice Department’s Office of Legal Counsel at the time. The OLC originally functioned to advise the president on the legality of proposed actions; however during the Bush years it turned into an apologist and justifier for the most sordid form of American exceptionalism: that because our nation advocated human rights and liberty, anything we did in their name was justified. Essentially, since we’re the world’s supernanny, it’s okay if we beat the children.

Bybee served for two years as the mind behind this ethos of exceptionalism – and while his 2002 memo is not brilliant work (an NYU law and ethics professor called it “abysmal”), it gave the executive branch enough wiggle room to say it was justified in using several dicey techniques against al-Qaida travel agent abu Zubaydah, including sleep deprivation, slamming his head against walls, forcing him to stand for days on end until he risked embolisms and renal failure, and other practices classified as torture under the Geneva Conventions.

Advocates of torture have long argued that today’s circumstances call for extraordinary measues in dealing with detainees. Today’s religious fanatics apparently put SS troops, kamikaze pilots, Ghurkas and berserkers to shame. The only way to deal with al-Qaida and its associated threats (including innocent cabbies and people whose relatives we killed) is with some sort of muscular pose hastily ripped from a 24 episode’s rough draft. Unfortunately the memo’s prose doesn’t come from the sort of bloody-knuckled streetfighter you would imagine favored torture – rather, it exhibits the logical contortions of an oleaginous schoolboy trying to kiss up to the headmaster while hiding from ideas he does not fully understand. For instance, here is Bybee’s take on pain and suffering:

“Pain and suffering” as used in Section 2340 is best understood as a single concept, not distinct concepts of “pain” as distinguished from “suffering.” See Section 2340 Memorandum at 6n.3. The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view inflict “severe pain or 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 severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.

All clear now? Bybee shows an immense faith in the idea that future legal scholars will be embroiled in a debate over whether torture had to constitute both pain and suffering or merely one item. While Bybee might be capable of regurgitating dogma about the Transubstantiation if spoon-fed it slowly enough, it is clear that his mind is not capable of arriving at the truth when armed only with facts.

And maybe the Bush administration sought to keep this work of legal ingenuity secret for so long because they knew what an embarrassment it would be if publicized. Either way, the fact that the Obama administration released it with almost no redactions whatsoever shows two things: that the memo held no critical national security secrets, and that the Bush administration’s arguments that revealing such memos would somehow compromise the deterrent effect of torture was an empty one.

Bybee exhibits a corrupt peanut plant inspector’s disregard for oversight when he cites the CIA’s own research into the safety of sleep deprivation: “Your review of the literature uncovered no empirical data on the use of these procedures, with the exception of sleep deprivation for which no long term health consequences resulted.” In fact, the CIA published a manual in 1963 outlining the debilitating effects of such treatment. Accounts by people who suffered sleep deprivation have been around for decades before that. John Schlapobersky was tortured using sleep deprivation in South Africa in the 1960s, and described its effects vividly:

“I was kept without sleep for a week in all. I can remember the details of the experience, although it took place 35 years ago. After two nights without sleep, the hallucinations start, and after three nights, people are having dreams while fairly awake, which is a form of psychosis.

“By the week’s end, people lose their orientation in place and time—the people you’re speaking to become people from your past; a window might become a view of the sea seen in your younger days. To deprive someone of sleep is to tamper with their equilibrium and their sanity.”

Bybee, acting as Dubya’s legal enabler, justified sleep deprivation for up to eleven days – well into the realm of causing deep psychosis. And while later accounts bear out that most of the information extracted from abu Zubaydah was useless, the relentless torture did at least succeed in revealing one deep, dark national security threat – that we, as a people, are almost as barbaric as the ethos we profess to fight. Ideally, bringing these torture memos to light will inspire us not to abandon our defense of our civilization – but to renew it from behind the bastion of our humanist values and not just our basest fears.