He certainly looks like a nice guy, this Judge Jay Bybee of the Ninth Circuit Court of Appeals. I guess his judgeship was a reward for his tireless work in providing legal cover for the CIA's torture regime, particularly when it came to Abu Zubaydah and Khallid Sheikh Mohammed. The recently disclosed "torture memos" written while Judge Bybee was working in the Little Shop of Legal Horrors (the Office of Legal Counsel) are case studies in pushing things to the brink of absurdity, such as Judge Bybee's solicitous attitude about what kind of stinging insect could be put into a coffin-like box with Abu in order to get him to start talking.
Abu, it turns out, had a morbid fear of stinging insects, which, I have to say, doesn't really surprise me. I think most of us share a similar phobia. My guess, based on the idea that most of these great legal thinkers despite their gaudy credentials are actually dumbshits, is that Judge Bybee really wanted to talk about stinging "arachnids." Certainly there are insects which sting, such as the honeybee or wasp, but for downright fear, give me an eight-legged entomological specimen anytime, such as a tarantula, scorpion or brown recluse spider. We'll get the facts on that 9-11 plot in no time.
Well, who cares about precise classification of arthropods? It could be a centipede too, for that matter. I can't help but feel that the CIA and the OLC got their ideas from Nineteen Eighty-Four and Winston Smith's morbid fear of rats. Nothing about the Bush-Cheney crowd ever struck me as being very original.
"In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. . . . [Y]ou must inform him that the insects will not have a sting that would produce death or severe pain...An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box. . . . Thus, we conclude that the placement of the insect in the confinement box with Zubaydah would not constitute a predicate act," [i.e. violate the anti-torture statute. (p. 14)] "[T]hough the introduction of an insect may produce trepidation in Zubaydah it certainly does not cause physical pain."
That's the OLC's version of reading a suspect his rights: he must be told whether the insect spending time in the coffin with him for a couple of hours can kill him or not. If you don't say, then he could "reasonably" feel threatened with severe physical pain or suffering of a lasting nature, and now you've violated the Convention Against Torture. On the other hand, if Zubaydah (who was recovering from wounds at the time) chooses to go ahead and "unreasonably" fear being stuck in a box so cramped he can't move for a couple of hours with any kind of insect -- well, that's his problem.
After this sophistry, waterboarding and banging someone's head against a wall were really easy to laugh off. The key is "specific intent:" the CIA operative (or sociopathic contractor hired for the well-paid job) must not only intend the predicate act of messing with someone, he must also have the specific intent of causing great physical or mental harm of a lasting nature. Legal reasoning is great, isn't it? If I pick up a baseball bat and take a swing at your head, I must not only intend to swing the bat and knock you into next week but intend that this harm be lasting and severe. This approach, as far as gaining the greatest possible latitude, would seem to favor hiring the dumbest, meanest interrogators you could find, to go along with the dumbest, meanest lawyers you can find to stock the Office of Legal Counsel with, which Bush certainly succeeded in doing.
Bybee may get impeached. I can kind of feel that one coming. Impeaching Bybee, disbarring him, disgracing him, would placate a lot of people who want Obama and Congress to do more, which they're not going to do. There is really only a small band of Americans who actually care about this stuff, or at least pretend to care. In reality they just like writing about it. Glenn Greenwald is up in arms, but hell - he lives in Brazil. Torture is interesting as a subject because it's full of legalisms, international law and relative precision. Bush also wrecked the world economy, but that's too diffuse a topic. Denouncing torture allows American critics to wax self-righteous (such as Keith Olbermann) without actually doing anything about it, because they can't. And Obama has made it pretty clear he's never going to prosecute anyone. It would upset people, and that's too much for him.
We should just face it and realize we're a nation which tortures people, a lot, and we have a lot of company in the world. And after we torture people, we don't care if the Convention Against Torture, a ratified treaty and supreme law of the land, requires us to investigate and prosecute where appropriate. So we don't follow the Treaty or our own Constitution? What else is new? At least we write memos before we slam your head into a wall or pour water into your lungs. How civilized can you get?
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