Something is very clear from these memos. The Bush administration often liked to say that they needed these memos to remain confidential in order to preserve the principle that the administration should receive the most candid legal advice available. What that secrecy fomented was a culture in which the precise conditions under which a man who had been shot in the leg could be placed inside a cramped box -- how many hours? -- and subjected to insects crawling on him without it being blatantly illegal. It wasn't just Abu Zubaydah's senses and personality that these memos warped.
Human beings were contorted into classic stress positions used by the Gestapo; they had towels tied around their necks in order to smash their bodies against walls; they were denied of all sleep for up to eleven days and nights at a time; they were stuck in tiny suffocating boxes; they were waterboarded just as the victims of the Khmer Rouge were waterboarded. And through all this, Bush and Cheney had lawyers prepared to write elaborate memos saying that all of this was legal, constitutional, moral and not severe pain and suffering.
Bybee is not representing justice in this memo. He is representing the president. And the president is seeking to commit war crimes. And he succeeded. This much we now know beyond any reasonable doubt. It is a very dark day for this country, but less dark than every day since Cheney decided to turn the US into a torturing country until now.
The phrase "banality of evil" is very overused, I realized. But this is a case where it applies. Bybee writes as just another corporate-style lawyer finding a legal rationale for his client to do what he wants to do. Happens every day, no big deal. Except that he's writing memos justifying using techniques that have been known to be torture since at least the Spanish Inquisition.
Oh sure, he says it needs to be "medically supervised" and performed by only those who are "qualified" which makes it all bureaucratically neat and tidy. And he consistently asserts the twisted logic that because American military people had come through the SERE training without suffering any lasting harm, that prisoners would also suffer no lasting harm, which not only makes no sense, but gives him a quasi-legal and moral justification for perpetrating despicable acts. Everything is very sterile and very controlled. And that's what makes this opinion so chilling.
And cannot every criminal on the face of the earth now claim the Obama defense: "Surely, your honor, nothing will be gained by spending our time and energy laying blame for the past. So let's forget the fact that I (raped/murdered/robbed/tortured), and move forward, shall we?" For the Obama defense is nothing other than the Nuremberg defense: "I was only following orders. I was given assurance by the highest authority that my actions were legal in all respects." Is this what we have come to? Is that what now constitutes bold, progressive action? Is this, really, part of our "core values," an essential embedded component of our "national greatness?"
The more one considers Obama's remarks, the more offensive they become, and the more flagrantly they insult the intelligence. For the very memos that he has released give the lie to his own statement. Obama says it would be wrong to prosecute CIA underlings for carrying out actions that they were told were legal. Leaving aside the fact that apparently none of these great, courageous, self-sacrificing, vigilant defenders of our "core values" (as Obama lauds them) considered these tortures to be inherently immoral, but simply wanted to cover their ass legally before they wall-slammed the hell out of somebody or poured water down their throats until they began to choke and drown -- the fact is, they were told quite specifically by Bush's White House shysters that there was no guarantee that their actions would be considered legal by a court.
I agree entirely that it is the DOJ lawyers who purported to legalize torture and the high-level Bush officials ordering it who are the prime culprits and criminals, as compared to, say, CIA agents who were proverbially just following orders and were told by the DOJ that what they were doing was legal. But leave aside the question of whether prosecutions would produce good or bad outcomes. After all, the notion that the law can and should be ignored whenever we think doing so would produce good results or would constitute good policy was the engine that drove Bush lawlessness. If, as Barack Obama proclaimed yesterday, "the United States is a nation of laws" and his "Administration will always act in accordance with those laws," isn't it the obligation of those opposing prosecution to justify that position in light of these legal mandates and long-standing principles of Western justice? How can they be reconciled?