John Yoo: The Bush administration, knowing what it intended to engage in, sought legal cover, a legal fig-leaf so to speak. The centerpiece for their legal rationale was Deputy Assistant Attorney General John Yoo's novel and notorious so-called Torture Memo. Yoo's memo of March 14, 2003, preceded Rumsfeld's memo of April 16, 2003, by roughly a month.
Yoo's argument for why the Geneva Conventions did not apply to the war on terror, specifically the war in Afghanistan, had never been made before, and they have never been made since. Nonetheless, Yoo gave Bush administration hawks a document they could wave around, and what they viewed at the time as legal protection.
Jay (now Federal Judge) Bybee: But whatever John Yoo concocted could not compare in sheer brazenness to the to the August 1, 2002, Jay Bybee Torture Memo. Also working out of the Department of Justice under Attorney General John Ashcroft, from the Office of Legal Counsel, Bybee proceeded to torture and murder the Geneva Conventions themselves. The memo is an astounding document. To describe Bybee's arguments could only serve to legitimize them. To understand the full weight of his departure from law, you must consider his core arguments as he wrote them:
- "[F]or an act to constitute torture, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.
- 'For purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.
- "[E]ven if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control.
- "[U]nder the current circumstances, necessity or self-defense may justify interrogation methods that might violate Sections 2340A."
For the record: No, that is not what the Geneva Conventions say. That is specifically the conduct the Conventions intended to define as criminal. Congratulations, Judge Bybee, that qualifies you as a co-conspirator.
It's interesting to note that both Bybee and Yoo authored their opinions from the DoJ. In doing so, they spoke officially on behalf of the highest law enforcement agency in the U.S. So that either insulates Bush administration officials who acted on those memos from war crimes prosecution or makes at least Bybee and Yoo willing accomplices.
Let's see what's in the Senate Torture Report. Should be good reading.
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