Lies the government told you

by Andrew P. Napolitano

  In the initial August 1st memo, Bybee and Yoo decided to circumvent the law by defining torture in an extremely narrow way. According to the memo, torture consists of “severe physical or mental pain or suffering” that produces a near occasion of death.47 It then concluded that in order for pain to be “severe,” it must be “equivalent in intensity to the pain accompanying organ failure, impairment of bodily function, or even death.”48 The memo stated that “prolonged mental harm” is harm that must last for “months or years.”49The memo also declared that the president had the power to authorize torture, regardless of the federal statute criminalizing it.50 Additionally, the memo advised that interrogators could escape liability for engaging in torture by utilizing expanded versions of the doctrines of “self-defense” and “necessity.”51

  The second August 1st 2002 memo, which was not released to the public until April 2009, approved all of the CIA’s proposed “interrogation” techniques, including: attention grasp, walling, facial hold, facial slap, cramped confinement, wall standing, stress positions, sleep deprivation, insects placed in a confinement box, and water-boarding.52 The OLC claimed that none of the techniques were severe enough to constitute its own tailor-made definition of torture.53

  The OLC concluded, for example, that waterboarding “inflicts no pain or actual harm whatsoever.”54 Yet, the Justice Department did not do its own independent research to analyze the various proposed tactics. Rather, it simply accepted the CIA’s positions on these methods.55 The memo states that “[the CIA has] informed us that . . . [waterboarding] . . . does not inflict actual physical harm.”56 So, basically, the OLC under Jay Bybee took the advice of those who asked for its advice on interrogation tactics to determine the lawfulness of those tactics. Does this make any sense? Bush, believe it or not, later appointed Bybee to the Ninth Circuit Court of Appeals.

  Furthermore, on December 2nd 2002, Secretary of Defense Donald Rumsfeld signed off on a memo, known as the “Haynes memo,” which blatantly condoned torture.57 That memo was drafted by William J. Haynes II, the General Counsel at the Defense Department, and was addressed to Rumsfeld.58 Haynes sought Rumsfeld’s approval of various new interrogation techniques, including isolation for up to thirty days, deprivation of light and auditory stimuli, and waterboarding, to name a few.59 Rumsfeld approved, but questioned a technique in which interrogators forced detainees to stand for a maximum of four hours.60 At the bottom of the document, Rumsfeld wrote, “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”61

  The Bush administration, therefore, had managed to sidestep the law, and through the Haynes memo, had more recipes for torture. The horrific incidents at Abu Ghraib, a prison located in Baghdad, Iraq, seem less and less like isolated incidents, despite no hard publicly known proof that they were ordered. During the summer of 2004, photos were released of American soldiers brutalizing and humiliating Iraqi prisoners. These soldiers forced Iraqis to masturbate and sexually assaulted them with chemical light sticks. American military personnel were also captured laughing over dead Iraqis whose bodies were disfigured. Another picture that surfaced was of a hooded Iraqi man standing naked on a box, with his arms outspread, and wires dangling from his fingers, nose, and penis. This is an arcane method of interrogation called “the Vietnam.” Many said that the soldiers had to have been taught how to do this, which could lead one to believe that they were ordered to do it. According to Senator Lindsey Graham (R-SC), “The photos clearly demonstrate to me the level of prisoner abuse and mistreatment went far beyond what I expected . . . It seems to have been planned.” Planned by whom, Senator?

  We know for sure that the Bush administration planned, condoned, and continues to defend a procedure known as waterboarding, and used it against prisoners Khalid Sheikh Mohammed, Abu Zubayda, and Abd al-Rahim al-Nashiri on multiple occasions. Waterboarding is a “stress-and-duress” procedure consisting of immobilizing a person on his back, with his head inclined downward. The “interrogator” then pours water over the face and into the breathing passages. Through forced suffocation, and inhalation of water, the subject experiences the process of drowning. Waterboarding does not always cause lasting physical damage, but it causes extreme pain, damage to the lungs, brain damage caused by oxygen deprivation, physical injuries due to struggling against the restraints, and even death.

  Waterboarding nevertheless constitutes torture, even under now-Judge Jay Bybee’s narrow definition of the term. As stated above, under the United States Code, torture is defined as “an act . . . specifically intended to inflict severe physical or mental pain or suffering. . . .” The Code defines severe mental pain or suffering as “the prolonged mental harm caused by or resulting from” a predicate act. One qualifying predicate act is “the threat of imminent death.” Bybee wrote in the memo that “waterboarding constitutes a threat of imminent death,” but found no evidence that the procedure caused prolonged mental harm. Thus even by his own perverse, twisted logic, now life-tenured federal Judge Bybee conceded that waterboarding is torture because it always brings the victim to a near occasion of death.

  Allen Keller, M.D., however, found evidence of prolonged mental harm.62 Dr. Keller, an Associate Professor of Medicine at the New York University School of Medicine, and the Director of the Bellevue/NYU Program for Survivors of Torture, testified before the Senate Select Committee on Intelligence on September 25th 2007.63 He stated, quite clearly, that waterboarding causes prolonged mental harm.64 According to Dr. Keller, “[l]ong term effects include panic attacks, depression and [post traumatic stress disorder].”65 Dr. Keller, who treats torture victims at Bellevue Hospital in New York City, described one patient who “would panic and gasp for breath whenever it rained, even years after his abuse.”66 Another patient panics every time he showers, and yet another victim “panics every time he becomes the least bit short of breath, even during exercise.”67 It is clear, then, that waterboarding does constitute torture, and the Bush administration broke the law.

  President Bush, Vice President Cheney, and their colleagues don’t care, though. The law is a mere suggestion to these people. Cheney, in a recent speech at the American Enterprise Institute on May 21st 2009, stated that he would not have changed any of the practices the Bush administration implemented.68

  The Justice Department’s actions in response to the leak of the initial August 2002 memo showed this continued objection to the rule of law.69 When the first August 2002 memo became public in 2004, the Justice Department issued a replacement memo on December 30th 2004, which essentially overruled the August 2002 memo.70 Nevertheless, the Justice Department could not keep from breaking the law. The OLC issued three secret memos in May 2005, signed by the head of the OLC, Steven Bradbury, which declared that none of the CIA techniques amounted to torture.71 The OLC based its assessment on two facts that are irrelevant to the lawfulness of the interrogation techniques.72

  One fact was that American soldiers in the military’s counter-terrorism training program had not suffered severe physical pain or prolonged mental harm when the techniques were performed on them.73 This information has nothing to do with the techniques’ lawfulness because American soldiers are not Guantánamo Bay detainees. Our soldiers entered this program voluntarily, the tactics used against them have clearly defined limits, and the soldiers can utter a code word whenever they want to stop the ordeal.74 Prisoners do not have these luxuries.

  The other fact on which Bradbury relied was that CIA-employed physicians would be present during interrogations of prisoners to monitor them.75How can physicians assess the severity of pain being inflicted? How can they know when to stop the process?76Did they ever stop it? What kind of a physician would facilitate the administration of pain? Don’t physicians promise, “First do no harm”?

  The third May 2005 memo, the most disturbing of them all, went even further, stating that the CIA’s interrogation techniques did not even amount to “cruel, inhuman, or degrading treatment.”77 Why did the OLC write this memo? Th
e Bush administration knew that Congress would soon vote on President Bush’s objections to the Detainee Treatment Act, which prohibited “cruel, inhuman, or degrading treatment” of any person in U.S. custody.78 Therefore, the Justice Department, in order to continue to permit the Bush administration to use cruel, inhuman, and degrading treatment, was forced to conclude that the enhanced interrogation techniques that Congress thought it was outlawing were neither cruel, nor inhuman, nor degrading. The OLC rationalized its claim, stating that in order for techniques to be considered cruel, inhuman, or degrading, they must “shock the conscience,” and the CIA’s techniques did not shock the conscience.79Whose conscience?

  Unfortunately, in its memo the OLC conveniently disregarded the United States Supreme Court case of Chavez v. Martinez (2003).80 In that case, the Supreme Court held that any intentional infliction of pain in the course of interrogation shocks the conscience, even where the statements gathered are not used to prosecute the subject.81 So, it turns out that intentionally inflicting pain is illegal. I guess our Justice Department, employing some of the most brilliant attorneys in the country, mistakenly skipped over the Chavez case, or, it was under pressure to disregard it. Of course, one must possess a conscience in order for it to be shocked, and many in the Bush administration gave all indications of lacking any semblance of a conscience.

  The latest public memo from the OLC on the CIA interrogation tactics was the one dated July 2007.82 This memo contains some remarkable language, considering the time at which it was written. Before the memo was written, the Supreme Court ruled that Common Article 3 of the Geneva Conventions covered al-Qaeda detainees, even though the Bush administration argued that they were not covered.83 The OLC claimed that al-Qaeda detainees were different, and that the CIA could engage in degrading treatment that did not constitute an “outrage upon personal dignity,”84 a class of treatment prohibited by Common Article 3. Furthermore, the memo stated that even if the CIA program violated Common Article 3, the president could simply declare that it does not apply.85

  The Office of Legal Counsel operates as the “constitutional conscience” of the Justice Department.86 Its job is to exercise independent, objective judgment to make sure the president and the executive branch are working within the law.87 Its job is not to write one-sided memos ignoring laws and treaties unfavorable to the president’s cause. The OLC is important not only because it works for the federal government, and Americans expect that the government will respect the rule of law (isn’t there a mountain of evidence that militates against such an expectation?), but also the OLC’s role is vital because its work is virtually unchecked.88 OLC lawyers are not private attorneys who put forth their clients’ best argument in an adversarial setting.89 No judge or jury reviews the OLC’s opinions. Rather, the OLC is supposed to work as a check on the executive branch, representing a line of defense against unlawful executive activity.

  It is clear, then, that the lawyers who wrote the torture memos and facilitated the Bush administration’s torture policy, are not merely guilty of exercising poor judgment; they disregarded their honorable role in our government and involved themselves in a criminal conspiracy. The Department of Justice must investigate and prosecute these lawyers to show that the guidelines they set for the CIA were illegal and essentially worked as a permission slip for CIA agents to violate the law. If we have any respect for our laws or any sense of justice, we must show that this behavior will not be tolerated.

  By the way, we also need to prosecute the OLC lawyers. We are legally bound by the Convention Against Torture to submit any case alleging torture by a person within our jurisdiction “to . . . competent authorities for the purpose of prosecution.”90Mr. President and Attorney General Holder, what are you waiting for?

  We Allowed It

  Depriving people of natural rights without due process is wrong, immoral, criminal, and unconstitutional; torture is the same, except that it can never be lawful or moral, since it is even prohibited after or as a result of due process. Yet, it seems that throughout history, we continue to restrict the rights of those who scare us. Bush administration personnel believed they were above the law and did horrible things in the name of “protecting our country.” After the atrocities of September 11th, some people actually agreed with the Bush administration and believed that the terrorists, or even potential terrorists, or even people the President thinks wanted to be terrorists, somehow deserve this treatment. Dick Cheney believes that “enhanced interrogations” were “essential, justified, successful, and the right thing to do.”

  Nevertheless, we are country of laws, and not of men. No one in the government can disregard the law because we’re living under special circumstances. Depriving people of due process is against the law. Torture is against federal and state law, and it violates the Natural Law and the Constitution. We must recognize this fact, and prevent the government from doing this again. We must be skeptical of the government, especially during times of national crisis or fabricated national crisis.

  Lie #16

  “The Right of the People to Be

  Secure in Their Persons, Houses,

  Papers, and Effects, Shall Not Be

  Violated”

  Imagine living in a world where the police can search your home without your knowledge at any time day or night; where the government listens to your telephone calls, and your mail is customarily opened and read; where even the Internet does not provide a safe haven for you to speak out, because every Web site you visit and e-mail you write and keystroke you press is filed away for the police to reference, as is a record of every book you ever buy or borrow from the library; where even your most private records, like your medical or financial or legal records, are subject to prying eyes.

  Now imagine that you could be arrested and held indefinitely based on what you wrote or said, or even on the mere suspicion that you were not wholeheartedly supportive of the current regime. Sounds terrifying? Well, do not breathe a sigh of relief that you are lucky enough to have avoided such fate, because what you are imagining is the United States of America circa 2010. These imaginings, which invoke memories of Soviet Russia or Nazi Germany or Orwell’s 1984, are all permitted by provisions in the USA Patriot Act, signed into law by President George W. Bush and enforced by President Barack Obama.

  The United States of America is the country that most people around the world associate with freedom. The American Dream is the dream of those in the farthest corners of the world, where countries are run by despots and people fear to speak. The Land of the Free calls to those who dream of a country where freedom still reigns. It is the dream of those who are scared that they might at any moment disappear because they said the wrong thing, because they put forth an opinion that might not have pleased those in power.

  As we discussed in Lie #13, unbelievable as it may seem, the benignly titled Patriot Act has very little to do with patriotism and protection from terrorism and much to do with the grasp for power that the federal government is so fond of. It is perhaps not surprising that the government would miss the irony of entitling this atrocity, which the ultimate patriots, our Founding Fathers, would have revolted against. The American Revolution, after all, was caused by the high rate of taxation imposed on the colonies by England. If taxes incited the Founding Fathers to tarring and feathering, I can only imagine what the agents of the government would be subjected to if they had proposed such a thing as the Patriot Act.

  Well, the America of today is quite different than the Founding Fathers would have ever imagined. And it is quite different than what the citizens of this country imagine today. Benjamin Franklin once said, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” And if he were to take a look at the America of today, he would say that we deserve none of the liberties, which we so easily surrendered in fear, through deception, in the stated purposes of a search for national security.

  The government found it s
o easy to deceive us, found that when we were scared, we would throw ourselves at its mercy, in order to feel safe. National security, they claimed, was attainable and the Patriot Act, which of course would require our patriotism and sacrifice, would help them attain it, never explaining that it would be at the cost of individual fundamental liberties that once made America the dream of the oppressed.

  All We Have to Fear Is Fear Itself

  (and, of Course, Those Scheming Frenchmen)

  Many assume that the power grab and ensuing denials of people’s rights brought by the Patriot Act have no precedents in American history. Sadly, that is not the case. The federal government has used fear to grasp our rights since the dawn of this country, and even John Adams, a Founding Father, used that fear after he became president and signed the Alien and Sedition Acts of 1798 into law. The fear was caused by what is now known as the XYZ affair, a French-American diplomatic incident.

  “Fear is the Foundation of Most Governments.”

  —President John Adams

  The United States government has developed a rich tradition of restricting the freedoms of groups of people that it believes or wants the public to believe pose a security threat, especially during times of war and national crisis. In 1798, the United States was nearing war with France. The Federalists (Washington, Adams, Hamilton, to name a few) controlled the executive and legislative branches of government, but felt threatened by the ideas emanating from the French Revolution. They believed that the Democratic-Republicans, also called anti-Federalists ( Jefferson, Madison, and Monroe, to name a few) who espoused these “French” views, would motivate aliens living in the United States to support the French.1 To suppress these ideas, Congress enacted the Alien and Sedition Acts over the summer of 1798.

  The Sedition Act victimized Matthew Lyon, a Republican congressman from Vermont, during his reelection campaign.2 Lyon published an article attacking the Adams administration and declaring that “every consideration of the public welfare [was] swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” The government made it impossible for Lyon to prevail at his trial. The trial judge instructed the jury that it must find “malicious intent,” an element of the crime, unless the statement “could have been uttered with any other intent than that of making odious or contemptible the President and the government, and bringing them both into disrepute.” Lyon could have defended himself by proving the truth of his statements, but this was quite the difficult task, as his statement was an opinion.