It is supremely surreal to find oneself sipping sparkling water in a sunny hotel courtyard, dispassionately discussing the legalities of torture.
Yet, there we were, an attorney and I, poring over memos about waterboarding as if they were weekend real estate ads. The moment was both ironic and grotesque.
Our purpose was to examine the memos in the context of the growing drumbeat for “justice” aimed at federal Judge Jay Bybee and law professor John Yoo, both attorneys who interpreted the law to allow waterboarding among other interrogation techniques.
In the weeks since Barack Obama released the so-called “torture memos,” both men have been demonized and tried in the public square for expressing a now-unpopular legal opinion. Depending on the outcome of an investigation pending in the Justice Department, the men could face sanctions or, in the case of Bybee, impeachment.
When did we start punishing lawyers for producing opinions with which we disagree? And where does that road lead?
It is easy now to declare that waterboarding is torture. I personally would agree, but then, I have a low tolerance for the sensation of drowning and the perception of imminent death. And, unlike the prisoners whose treatment has been questioned, I’ve had no preparation for such trials.
Fortunately, the CIA did not consult me when it needed information from al-Qaida leader Abu Zubaida six months after the 9/11 attacks. Instead, the agency asked government attorneys to interpret whether 10 interrogation techniques, including waterboarding, would violate the 1994 statute prohibiting torture.
Keep in mind: Terrorist chatter at the time was comparable to pre-9/11 levels. And the CIA had determined that Abu Zubaida had crucial information about another attack.
Bybee and Yoo didn’t have much to go on since no court had ever interpreted the statute, but the law is fairly specific. It defines torture as inflicting pain that is “difficult to endure” and that is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
Contrary to what I and others previously have written, the memos did not conclude that techniques could only be torture if they cause “death, organ failure, or serious impairment of bodily functions.” That would have left open the possibility for a range of clearly unacceptable abuses. Consider this a correction.
Whether one agrees with the Bybee-Yoo interpretation is a difference of opinion, but nothing more. Any fair assessment has to include consideration of context and distinctions that matter, including the definition of waterboarding, which varies according to country and century.
There are significant differences between what the Japanese did during World War II, for example, and what was authorized by the U.S. government.
The Japanese forced water into the prisoner’s nose and mouth. In our own version, the prisoner’s mouth and nose are covered with a cloth that is saturated with water for no more than 20-40 seconds in a controlled manner.
No water enters the lungs. Moreover, the same technique is used to train our own military personnel, who do not suffer severe physical pain or prolonged mental harm.
Thus, the attorneys deduced that waterboarding, though extremely unpleasant, wasn’t torture. It was never up to the attorneys to express an opinion about whether waterboarding was good policy. Their only role was to interpret the law in good faith.
Even if Bybee and Yoo were wrong, their error doesn’t rise to the level of an ethical offense, much less a war crime. Under the Justice Department’s own standards, an ethical issue would arise only if their opinion was so obviously wrong that no reasonable lawyer could possibly reach the same conclusion.
By that standard, the only obvious wrong is the continued persecution of Jay Bybee and John Yoo. The effect sanctions might have on future lawyering, meanwhile, could be chilling.
In testimony Wednesday before a Senate judiciary subcommittee, law professor Michael Paulsen (University of St. Thomas) predicted that “presidents and administrations of both parties will not obtain candid, vigorous legal advice reflecting the full range of views, on sensitive matters of war, foreign affairs and national security.”
America’s enemies could hope for no more.
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