Bush administration attorney Jay Bybee, now a judge on the Ninth Circuit Court of Appeals serving a lifetime appointment, crafted legal justifications for torture after intelligence officials began to adapt techniques already deemed illegal by U.S. and international law, according to a report released Tuesday evening by the Senate Armed Services Committee.
The 232-page report leaves no doubt that the interrogation techniques were torture and were long known to be illegal. The Bush administration's program of torture was "reverse engineered," in the words of Richard Shiffrin, the general counsel for intelligence for the Department of Defense in 2002, from communist Chinese techniques designed to elicit false confessions. In that respect, the program worked well, as tortured detainees told officials whatever they could think of and sent CIA agents chasing bogus tips around the globe, according to press reports.
The program that the torture was developed from was known as Survival Evasion Resistance and Escape (SERE). The purpose of SERE was to teach American soldiers to resist torture - not to establish a set of practices to torture detainees.
SERE was run by the Joint Personnel Recovery Agency (JPRA). One JPRA instructor told the committee that the set of techniques in the program, such as waterboarding, were "based on illegal exploitation...of prisoners over the last 50 years."
On August 1, 2002, Bybee signed two memos that purported to justify the torture, arguing that for it to be torture it "must inflict pain that is difficult to endure," using as examples "serious physical injury, such as organ failure." His second memo, released after the report was finished, justified specific acts of torture that had been deemed illegal for the past 50 years by U.S. and international law. The report was embargoed until Tuesday night.
Much of the abuse disclosed in the committee's report had previously been made public by either the International Committee of the Red Cross, news reports or in books such as Jane Mayer's "Dark Side". But the committee report demonstrates how torture was first justified by the White House for Guantanamo detainees, but then spread by official edict to Afghanistan and Iraq - even after the authority to torture was rescinded for Guantanamo agents. The Bush administration had argued that the Geneva Conventions didn't apply in Afghanistan, but never tried that argument in Iraq. Still, the torture memos written for Guantanamo, where international law was unilaterally suspended, were used, the report shows, to legally justify torture in Iraq.
Simply deeming illegal acts to be legal does not, of course, make them legal. Rep. Jerry Nadler (D-N.Y.), in arguing for Bybee's impeachment, says that the purpose of the memos was not to give an honest legal analysis, but to deem legal behavior that is clearly illegal in order to encourage that illegal activity. The charge, says Nadler, would be something along the lines of conspiracy to abet torture.
House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) announced Tuesday he would hold a hearing looking into the role Bush administration lawyers played in justifying torture. Some lawyers, Conyers told the Huffington Post, were engaged in honest analysis of the law. Others, he said, were simple law breakers.
"There are some who tried to do a get-out-of-jail-free card. Obviously, there are some that that's all they were thinking," said Conyers, declining to name specific names, citing his upcoming hearings.
But he has a few in mind. "We're coming after these guys," he said.