When the United States ratified the Convention Against Torture in 1994, it agreed to criminalize torture and to provide civil remedies for torture victims. Torture was defined as the infliction of “severe” pain and suffering with the intention of doing harm for a specific purpose, such as obtaining information during interrogations, carried out by “a public official or other person acting in an official capacity.”
In August 2002, Jay Bybee, head of the Justice’s Office Of Legal Counsel, and now a federal judge appointed for life to the U.S. 9th Circuit Court of Appeals, wrote a 50-page memo that essentially said the president could authorize torture even though our laws and treaties prohibited it. The memo asserted that the president could act however he saw fit during war, even if U.S. law and international treaties prohibited such conduct. “The president enjoys complete discretion in the exercise of his commander in chief authority,” the memo stated, and “Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”
Bybee’s tortured logic completely contradicts the fact that The Convention Against Torture provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.” And Common Article 3 of the Geneva Conventions provides that the rights and duties concerning fundamental humane treatment apply whether a person detained is a prisoner of war, unprivileged belligerent, terrorist or ordinary civilian.
Now we learn from the Senate Intelligence Committee’s report that as national security adviser to Bush, Condoleezza Rice verbally approved the CIA’s request to subject Abu Zubaydah to waterboarding in July 2002, before Bybee’s memo was even written. Last fall, Rice told the Senate Armed Services Committee only that she had attended meetings where the CIA interrogation request was discussed and asked for the attorney general to conduct a legal review. Rice used the infamous Alberto Gonzales “I don’t recall” defense in her testimony, and conveniently omitted her direct role in approving the program in her written statement to the committee. It’s clear that Rice essentially lied to the committee, which given her track record, should come as no great surprise.
Rice approved the use of torture despite the fact that Philip Zelikow, a former top lawyer in the State Department, wrote a memo strenuously objecting to the legal opinions laid out in the torture memo. The White House responded by attempting to destroy all copies of the memo Zelikow authored.
Conservatives like former Vice President Dick Cheney claim that by releasing the memos, we are no different than a Banana Republic. The memos clearly show that Bush administration officials authorized the use of torture and committed war crimes. If Rice, Cheney and others in the administration are not prosecuted for their crimes, then Cheney’s characterization of the U.S. will be accurate.