[Congressional Record Volume 155, Number 78 (Wednesday, May 20, 2009)]
[Extensions of Remarks]
[Pages E1214-E1215]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WALL STREET JOURNAL OP-ED PIECE ON TORTURE
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HON. DON YOUNG
of alaska
in the house of representatives
Wednesday, May 20, 2009
Mr. YOUNG of Alaska. Madam Speaker, I rise today to introduce the
following Op-Ed piece from the May 16, 2009 edition of the Wall Street
Journal. I believe this piece speaks to the reactive nature of
Congress, and will help shed some light on this issue to those both
inside and outside the Beltway.
[From the Wall Street Journal, May 16, 2009]
Critics Still Haven't Read the ``Torture'' Memos
(By Victoria Toensing)
Sen. Patrick Leahy wants an independent commission to
investigate them. Rep. John Conyers wants the Obama Justice
Department to prosecute them. Liberal lawyers want to disbar
them, and the media maligns them.
What did the Justice Department attorneys at George W.
Bush's Office of Legal Counsel (OLC)--John Yoo and Jay
Bybee--do to garner such scorn? They analyzed a 1994 criminal
statute prohibiting torture when the CIA asked for legal
guidance on interrogation techniques for a high-level al
Qaeda detainee (Abu Zubaydah).
In the mid-1980s, when I supervised the legality of
apprehending terrorists to stand trial, I relied on a
decades-old Supreme Court standard: Our capture and treatment
could not ``shock the conscience'' of the court. The OLC
lawyers, however, were not asked what treatment was legal to
preserve a prosecution. They were asked what treatment was
legal for a detainee who they were told had knowledge of
future attacks on Americans.
The 1994 law was passed pursuant to an international
treaty, the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment. The law's
definition of torture is circular. Torture under that law
means ``severe physical or mental pain or suffering,'' which
in turn means ``prolonged mental harm,'' which must be caused
by one of four prohibited acts. The only relevant one to the
CIA inquiry was threatening or inflicting ``severe physical
pain or suffering.'' What is ``prolonged mental suffering''?
The term appears nowhere else in the U.S. Code.
Congress required, in order for there to be a violation of
the law, that an interrogator specifically intend that the
detainee suffer prolonged physical or mental suffering as a
result of the prohibited conduct. Just knowing a person could
be injured from the interrogation method is not a violation
under Supreme Court rulings interpreting ``specific intent''
in other criminal statutes.
In the summer of 2002, the CIA outlined 10 interrogation
methods that would be used only on Abu Zubaydah, who it told
the lawyers was ``one of the highest ranking members of'' al
Qaeda, serving as ``Usama Bin Laden's senior lieutenant.''
According to the CIA, Zubaydah had ``been involved in every
major'' al Qaeda terrorist operation including 9/11, and was
``planning future terrorist attacks'' against U.S. interests.
Most importantly, the lawyers were told that Zubaydah--who
was well-versed in American interrogation techniques, having
written al Qaeda's manual on the subject--``displays no signs
of willingness'' to provide information and ``has come to
expect that no physical harm will be done to him.'' When the
usual interrogation methods were used, he had maintained his
``unabated desire to kill Americans and Jews.''
The CIA and Department of Justice lawyers had two options:
continue questioning Zubaydah by a process that had not
worked or escalate the interrogation techniques in compliance
with U.S. law. They chose the latter.
The Justice Department lawyers wrote two opinions totaling
54 pages. One went to White House Counsel Alberto Gonzales,
the other to the CIA general counsel.
Both memos noted that the legislative history of the 1994
torture statute was ``scant.'' Neither house of Congress had
hearings, debates or amendments, or provided clarification
about terms such as ``severe'' or ``prolonged mental harm.''
There is no record of Rep. Jerrold Nadler--who now calls for
impeachment and a criminal investigation of the lawyers--
trying to make any act (e.g., waterboarding) illegal, or
attempting to lessen the specific intent standard.
The Gonzales memo analyzed ``torture'' under American and
international law. It noted that our courts, under a civil
statute, have interpreted ``severe'' physical or mental pain
or suffering to require extreme acts: The person had to be
shot, beaten or raped, threatened with death or removal of
extremities, or denied medical care. One federal court
distinguished between torture and acts that were ``cruel,
inhuman, or degrading treatment.'' So have international
courts. The European Court of Human Rights in the case of
Ireland v. United Kingdom (1978) specifically found that wall
standing (to produce muscle fatigue), hooding, and sleep and
food deprivation were not torture.
The U.N. treaty defined torture as ``severe pain and
suffering.'' The Justice Department witness for the Senate
treaty hearings testified that ``[t]orture is understood to
be barbaric cruelty . . . the mere mention of which sends
chills down one's spine.'' He gave examples of ``the needle
under the fingernail, the application of electrical shock to
the genital area, the piercing of eyeballs. . . .'' Mental
torture was an act ``designed to damage and destroy the human
personality.''
The treaty had a specific provision stating that nothing,
not even war, justifies torture. Congress removed that
provision when drafting the 1994 law against torture, thereby
permitting someone accused of violating the statute to invoke
the long-established defense of necessity.
The memo to the CIA discussed 10 requested interrogation
techniques and how each should be limited so as not to
violate the statute. The lawyers warned that no procedure
could be used that ``interferes with the proper healing of
Zubaydah's wound,'' which he incurred during capture. They
observed that all the techniques, including waterboarding,
were used on our military trainees, and that the CIA had
conducted an ``extensive inquiry'' with experts and
psychologists.
But now, safe in ivory towers eight years removed from 9/
11, critics demand criminalization of the techniques and the
prosecution or disbarment of the lawyers who advised the CIA.
Contrary to columnist Frank Rich's uninformed accusation in
the New York Times that the lawyers ``proposed using'' the
techniques, they did no such thing. They were asked to
provide legal guidance on whether the CIA's proposed methods
violated the law.
Then there is Washington Post columnist Eugene Robinson,
who declared that ``waterboarding will almost certainly be
deemed illegal if put under judicial scrutiny,'' depending on
which ``of several possibly applicable legal standards''
apply. Does he know the Senate rejected a bill in 2006 to
make waterboarding illegal? That fact alone negates
criminalization of the act. So quick to condemn, Mr. Robinson
later replied to a TV interview question that he did not know
how long sleep deprivation could go before it was
``immoral.'' It is ``a nuance,'' he said.
Yet the CIA asked those OLC lawyers to figure out exactly
where that nuance stopped in the context of preventing
another attack. There should be a rule that all persons
proposing investigation, prosecution or disbarment must read
the two memos and all underlying documents and then draft a
dissenting analysis.
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