The Bybee Torture Memo

Unquestionably, the Bybee Memo is the most notorious of the memos and advisory opinions dealing with abuse of detainees. According to John Yoo, the memo was written because the CIA wanted guidance on how far it could go interrogating high-value Al Qaeda detainees; the United States had already captured Abu Zubaydah, believed by some to be a top Al Qaeda leader.^[333] Apparently, the CIA wanted to go quite far.

The Bybee Memo provided maximum reassurance of impunity to nervous interrogators. It concluded that inflicting physical pain does not count as torture until the pain reaches the level associated with organ failure or death; that inflicting mental pain is lawful unless the interrogator specifically intends it to last months or years beyond the interrogation; that utilizing techniques known to be painful is not torture unless the interrogator speci­fically intends the pain to be equivalent to the pain accompanying organ failure or death; that enforcing criminal laws against Presidentially author­ized torturers would be unconstitutional; that self-defense includes torturing helpless detainees in the name of national defense; and that torture in the name of national security may be legally justifiable as the lesser evil, through the doctrine of necessity.

These conclusions range from the doubtful to the loony. Some can be supported by conventional, if debatable, legal arguments. These include the analysis of mental torture, which has some support in the language of the statute, and the discussion of specific intent, where OLC seizes on one of two standard readings of the doctrine but, quoting authorities quite selectively, ignores the other.

Others, however, have the mad logic of the Queen of Hearts’ arguments with Alice. The analysis of self-defense, for example, inverts a doctrine permitting last-resort defensive violence against assailants into a rationale for waterboarding bound and helpless prisoners. OLC cites no conventional legal authority for this inversion, for the simple reason that there is none. Although OLC claimed to base its analysis on the teachings of “leading scholarly commentators” (again: “some commentators”), in fact there is only one such commentator, and OLC flatly misrepresents what he says.⁵⁴ Although

“alternative interrogation procedures” were “necessary” to break Zubaydah. Bush speech, supra note 18.

⁵³ Dana Priest, CIA Puts Harsh Tactics on Hold, Wash. Post, June 27, 2004, A1.

⁵⁴ The commentator is Michael S. Moore, Torture and the Balance ofEvils, 23 Israel L. Rev. 280, 323 (1989). Here is what OLC says: “Leading scholarly commentators believe that inter­rogation of such individuals using methods that might violate [the anti-torture statute] would be justified under the doctrine of self-defense.” TP, supra note 1, at 211, citing to Moore. And here is what Moore actually says on the page OLC cites: “The literal law of self-defense is not available to justify their torture. But the principle uncovered as the moral basis of the defense may be applicable” (emphasis added). OLC states that “the doctrine of self-defense” would justify torture, where Moore says, quite literally, the opposite. Note also the difference between OLC’s assertive “would be justified” and Moore’s cautious “may be applicable.”

Professors Eric Posner and Adrian Vermeule quickly published a Wall Street Journal op-ed describing the Memo’s arguments as “standard lawyerly fare, routine stuff,”^[335] theirs was a distinctly minority view that seemed plainly to be an exercise in political damage control.^[336] By ordinary lawyerly standards, the Bybee Memo was, in Peter Brooks’s words, “textual interpretation run amok - less ‘lawyering as usual’ than the work of some bizarre literary deconstructionist.”^[337] Even the OLC - after Jack Goldsmith (a sometimes co­author of Professor Posner) took over from Jay Bybee - did not regard the Bybee Memo as standard lawyerly fare. In an unusual move, it publicly repudiated the Memo a few months after it was leaked.

This is not the place to offer a detailed analysis of the Bybee Memo (which I have done elsewhere).^[338] To illustrate its eccentricity, I will pick just two examples: the organ-failure definition of “severe pain,” and one curious portion of its discussion of the necessity defense.

The amazing fact about the organ-failure definition is that Yoo and his co­authors based it on a Medicare statute that has nothing whatsoever to do with torture. The statute defines an emergency medical condition as one in which someone experiences symptoms that “a prudent lay person... could reas­onably expect” might indicate “serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.” The statute specifies that severe pain is one such symptom. In an exquisite exercise of legal formalism run amok, the Memo infers that pain is severe only if it is at the level indicating an emergency medical condition. The authors solemnly cite a Supreme Court decision to show that Congress's use of a phrase in one statute should be used to interpret its meaning in another. Months later, when OLC withdrew the Bybee Memo and substituted the Levin Memo, the substitute memo rejected this argument and pointed out the obvious: that the Medicare statute was a definition of an emergency medical condition, not of severe pain, and the difference in context precludes treating it as an implicit defi­nition of severe pain.^[339] The organ-failure definition, perhaps more than any other portion of the Bybee Memo, involved lawyering that cannot be taken seriously. It seems obvious that OLC lawyers simply did an electronic search of the phrase “severe pain” in the United States Code and came up with the healthcare statutes (the only ones other than torture-related statutes in the entire Code to employ the phrase). Then they decided to see how clever they could get. The result is a parody of legal analysis.

The discussion of the necessity defense is bizarre for a different reason.

However, the Bybee Memo's authors were not content to argue for the possibility of the necessity defense. They also threw in an argument that even though the necessity defense is available to torturers, it would not necessarily be available in cases of abortion to save a woman's life.^[341] At this point, the partisan political nature of the document becomes too obvious to ignore. It is the moment when the clock strikes thirteen. Opposition to abortion was an article of faith in the Ashcroft Justice Department, and apparently the OLC lawyers decided to try for a “two-fer” - not only providing a necessity defense for torture, but throwing in a clever hip-check to forestall any possibility that their handiwork might be commandeered to justify life­saving abortions if a legislature ever voted to outlaw them. Even abortion opponents are likely to balk at the thought that torture might be a lesser evil than abortion to save a mother’s life. But this was the conclusion that the OLC aimed to preserve.