[Congressional Record (Bound Edition), Volume 155 (2009), Part 10]
[Extensions of Remarks]
[Pages 13155-13156]
[From the U.S. Government Publishing Office, www.gpo.gov]




               WALL STREET JOURNAL OP-ED PIECE ON TORTURE

                                 ______
                                 

                             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.

[[Page 13156]]



              [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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