The Other Interrogation Memos

The ones that show results.

President Obama spoke at length yesterday about balancing national security with legal protections, and intelligence secrecy with the need for accountable leadership. But on at least one point, he has the ability to please everyone: Release the still-secret memos that discuss the results of enhanced interrogation against al Qaeda detainees.

Mr. Obama has already released the memos that set the legal limits on interrogation, to much fanfare and (in our case) dismay. But he still refuses to release the memos that former Vice President Dick Cheney and others claim will show that interrogation yielded valuable intelligence that saved American lives. The CIA recently turned down Mr. Cheney’s formal request to declassify those memos, but the ultimate declassification authority rests with the President.

Mr. Obama has said he’s read the memos and found the evidence of intelligence success to be ambiguous. Fair enough. Let the American people see the evidence and judge for themselves. If Mr. Cheney is exaggerating this antiterror success, we should know. The fact that the Administration won’t release the memos, and won’t explain why it won’t release them, suggests that Mr. Cheney is telling the truth.

Editorial, Wall Street Journal

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Full article: http://online.wsj.com/article/SB124294880048745363.html

The Torture Debate: The Lawyers

It is encouraging to see the Obama team moving toward some accountability for the Bush administration lawyers who justified torture.

Wednesday’s Times reported that the Justice Department’s Office of Professional Responsibility concluded that the lawyers were guilty of serious lapses of judgment when they argued that detainees could be subjected to interrogation methods long banned by American law, military doctrine and international treaties.

A draft report by the office does not call for prosecuting those lawyers, The Times said, but is likely to ask state bar associations to consider disciplinary action. We believe it must do so in unequivocal language. Bar association disciplinary committees are not set up to do investigations into torture, but they have no excuse not to use documentary evidence from the report to proceed.

When the Justice Department’s Office of Legal Counsel renders an opinion, it has the force of law within the executive branch. It is obvious when the attorneys in that office under President Bush were asked for their legal opinion on detainee treatment, they did not make a cold, independent judgment. They deliberately contorted the law to justify decisions that had already been made, making them complicit in those decisions.

Their acts were a grotesque abrogation of duty and breach of faith: as government officials sworn to protect the Constitution; as lawyers bound to render competent and honest legal opinions; and as citizens who played a major role in events that disgraced this country.

The three primary authors of the torture memos were John Yoo, Jay S. Bybee and Steven G. Bradbury. Based on their own words and what we have read about the Justice Department investigation, it is hard to imagine any bar association allowing them to go on practicing law.

Mr. Bybee’s case is the worst. While Mr. Yoo and Mr. Bradbury returned to private life, President Bush rewarded Mr. Bybee with a lifetime position on a federal appeals court. The memos he wrote or signed made it clear that he was not fit to make judgments about the law and the Constitution. Congress should remove him.

The Justice report was finished last November, but withheld by the Bush team to give Mr. Bybee and the others a chance to amend it. The Obama administration should release the full report quickly. There can be no excuse or justification for the abuses — or the abuse of the law. But telling the truth about what happened is the best way to ensure that it never happens again.

Editorial, New York Times

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Full article: http://www.nytimes.com/2009/05/07/opinion/07thu2.html?ref=opinion

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See also:

Critics Still Haven’t Read the ‘Torture’ Memos

The CIA proposed the methods. The Justice Department gave its advice.

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.

Ms. Toensing was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration.

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Full article: http://online.wsj.com/article/SB124243020964825531.html

Charges Seen as Unlikely for Lawyers Over Interrogations

An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.

The conclusions of the 220-page draft report are not final and have not yet been approved by Attorney General Eric H. Holder Jr. The officials said it is possible the final report might be subject to revision, but they did not expect major alterations in its main findings or recommendations.

The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed.

At issue are whether the Justice Department lawyers acted ethically in writing a series of legal opinions from 2002 to 2007. The main targets of criticism are John Yoo, Jay S. Bybee, and Steven G. Bradbury, who as senior officials in the department’s Office of Legal Counsel were the principal authors of the memos.

The opinions permitted the C.I.A. to use a number of interrogation methods that human rights groups have condemned as torture, including waterboarding, wall-slamming, head-slapping and other techniques. The opinions allowed many of these practices to be used repeatedly and in combination.

Several legal scholars have remarked that in approving waterboarding — the near-drowning method that President Obama and his aides have described as torture — the Justice Department lawyers did not cite cases in which the United States government had prosecuted American law enforcement officials and Japanese interrogators in World War II for using the procedure.

In a letter made public on Monday, the Justice Department advised two Democratic senators on the Judiciary committee, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, that the former department lawyers who wrote the opinions had until Sunday to submit written appeals to the findings.

The draft report on the interrogation opinions was completed in December and has provoked controversy within counterterrorism circles, which has intensified since last month when the Obama administration disclosed four previously secret opinions written from 2002 and 2005, which for the first time detailed the approved procedures.

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Full article: http://www.nytimes.com/2009/05/06/us/politics/06inquire.html?hp

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See also:

Bush Officials Try to Alter Ethics Report

Former Bush administration officials have launched a behind-the-scenes campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.

Representatives for John C. Yoo and Jay S. Bybee, subjects of the ethics probe, have encouraged former Justice Department and White House officials to contact new officials at the department to point out the troubling precedent of imposing sanctions on legal advisers, said the sources, who spoke on the condition of anonymity because the process is not complete.

The effort began in recent weeks, the sources said, and it could not be determined how many former officials had reached out to their new counterparts.

A draft report of more than 200 pages, prepared in January before Bush’s departure, recommends disciplinary action, rather than criminal prosecution, by state bar associations against Yoo and Bybee, former attorneys in the department’s Office of Legal Counsel, for their work in preparing and signing the interrogation memos. State bar associations have the power to suspend a lawyer’s license to practice or impose other penalties.

The memos offered support for waterboarding, slamming prisoners against a flexible wall and other techniques that critics have likened to torture. The documents were drafted between 2002 and 2005.

The investigation, now in its fifth year, could shed new light on the origins of the memos. Investigators rely in part on e-mail exchanges among Justice Department lawyers and attorneys at the CIA who sought advice about the legality of interrogation practices since been abandoned by the Obama administration.

Two of the authors, Bybee, now a federal appeals court judge, and Yoo, now a law professor in California, had a Monday deadline to respond to investigators.

Miguel Estrada, an attorney for Yoo, said, “As a condition of permitting me to represent Professor Yoo in this matter, the Department of Justice required me to sign a confidentiality agreement. As a result of that agreement, there’s nothing I can say.”

Maureen Mahoney, an attorney for Bybee, also cited the confidentiality requirement in declining to comment.

The legal analysis on interrogation prepared by a third former chief of the Office of Legal Counsel, Steven G. Bradbury, also was a subject of the ethics probe. But in an early draft, investigators did not make disciplinary recommendations about Bradbury.

In a separate effort to counterbalance the draft report, Attorney General Michael B. Mukasey and Deputy Attorney General Mark R. Filip wrote a 14-page letter before they left office this year. They described the context surrounding the origins of the memos, written at a time when officials feared another terrorist strike on American soil.

Both Mukasey and Filip were dissatisfied with the quality of the legal analysis in the wide-ranging draft report, sources said. Among other things, the draft report cited passages from a 2004 CIA inspector general’s investigation and cast doubt on the effectiveness of the questioning techniques, which sources characterized as far afield from the narrow legal questions surrounding the lawyers’ activities. The letter from Mukasey and Filip has not been publicly released, but it may emerge when the investigative report is issued.

A person who has spoken with both Mukasey and Filip said yesterday that neither had been solicited to approach new department leaders about the ethics report.

Late Monday, Assistant Attorney General Ronald W. Weich wrote senior congressional Democrats to offer an update about the status of the ethics investigation, which is being conducted by the Justice Department’s Office of Professional Responsibility. Weich told Sens. Richard J. Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) that Attorney General Eric H. Holder Jr. and Deputy Attorney General David W. Ogden “will have access to whatever information they need to evaluate the final report and make determinations about appropriate next steps.”

Authorities did not signal in the letter when or in what form the report will be released. The biggest holdup had been that the content of the interrogation memos was classified, but the documents were released last month by the Justice Department. Sources said the highly anticipated report could emerge as soon as this summer.

Mary Patrice Brown, new chief of the Justice Department ethics office, told an audience of lawyers last night that her preference is toward “transparency” and releasing investigative reports on a case-by-case basis, depending on the “severity” of the misconduct and the public’s interest.

Any disciplinary findings about the former Justice lawyers could energize calls within Congress and among left-leaning interest groups for criminal prosecution of Bush administration officials who authorized the interrogations and for an independent congressional inquiry into the origins of the practices.

In an interview yesterday, Durbin said it was too early to call for a special prosecutor or another congressional probe.

But, he said, many important questions remained unanswered. “It’s a question of responsibility. In this chain of command, how far up did it go?”

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Full article: http://www.washingtonpost.com/wp-dyn/content/article/2009/05/05/AR2009050502219.html?hpid=topnews

When Israel Confronted and Rejected Torture

Reading about the Bush administration’s convoluted attempts to justify torture takes me back to reporting I did 12 years ago on the anguished debate in Israel over its secret service’s use of violence in interrogations. That was two years before the Israeli Supreme Court banned the practice. “This is the destiny of democracy, as not all means are acceptable to it and not all practices employed by its enemies are open before it,” wrote the president of the court, Aharon Barak.

I had interviewed Justice Barak for my article, and I recall with some shame my righteous certainty in those days that I came from a country that would never stoop to such methods.

An internationally respected jurist and a deeply patriotic Israeli, Justice Barak was acutely aware of the competing demands of what the ruling called “the harsh reality of terrorism” and a “democratic, freedom-loving society.” Certainly nobody would question the reality of the threats faced by Israel. And none of its foes share its scruples about torture, as many critics furiously pointed out to the high court (and to me after my article appeared).

Until the ruling, Israel, like the Bush administration, had insisted that methods of torment permitted in interrogating detainees were not torture and, therefore, not in violation of international and national law prohibiting the use of torture. Those methods included violent shaking, shackling prisoners to a low and tilted stool, covering their heads with urine-drenched hoods and sleep deprivation.

Israel’s official euphemism, “a moderate measure of physical pressure,” was a touch more honest than the Bush administration’s “enhanced interrogation techniques.” But the intent was the same. The United Nations Convention Against Torture, which both Israel and the United States have ratified, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” to obtain information or a confession.

Israel’s other familiar line of defense was that the country was embroiled in a “war on terrorism” (that was years before former President George W. Bush used the term) and, therefore, could not deal gently with a Palestinian who may know of a literally ticking bomb.

Having covered the gruesome aftermath of several suicide bombings, I was not unsympathetic to “ticking-bomb” arguments. But by then quite a few Israelis, including Justice Barak, had ceased to believe that the ends were justifying the violent means.

When judges or lawyers asked for evidence that “moderate physical pressure” was actually saving lives, it was always classified. Some Palestinians who had been tortured told me they waited several days in detention before their turn came to be questioned about a “ticking bomb.” Most were released.

In any case, for all their legal legerdemain, the Israelis, like the Americans, seemed always to know that abusing prisoners was morally and legally wrong. Politicians in both countries were eager to avoid a public debate.

The Israeli court decision grew out of the Supreme Court’s irritation that it was being made to shoulder an unsavory responsibility that really belonged to the legislature — “to pull Parliament’s chestnuts out of the fire,” in Justice Barak’s words. And why would the Bush administration have used “extraordinary renditions” or a prison in Cuba if it believed its actions were above board?

In both countries, whatever security benefits may have been gained by torture were far outweighed by the damage done to a nation that betrays its own values. As Justice Barak wrote in his decision in 1999, “Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.”

Serge Schmemann

Full article: http://www.nytimes.com/2009/05/01/opinion/01fri4.html?ref=opinion

A Tortured Rationale

The President suggests Cheney is right.

Explaining his decision to put a stop to the CIA’s practice of “enhanced interrogations” of terrorist detainees, President Obama told a press conference Wednesday that “I am absolutely convinced it was the right thing to do — not because there might not have been information that was yielded by these various detainees that were subjected to this treatment, but because we could have gotten this information in other ways.” Such as?

In his memoir, former CIA Director George Tenet recalls that “In his initial interrogation by CIA officers, [9/11 mastermind Khalid Sheikh Mohammed] was defiant. ‘I’ll talk to you guys,’ he said, ‘after I get to New York and see my lawyer.'” Mr. Obama must be under the impression that the CIA used waterboarding as a first resort.

The President also cited Winston Churchill, who, he said, refused to torture German detainees even when “London was being bombed to smithereens.” But Churchill did authorize the firebombing of Hamburg and other cities, the human toll of which numbered in the hundreds of thousands. Does Mr. Obama consider that a more ethical approach to our enemies?

Still, the President’s reference to Britain was unwittingly instructive, since the British treatment of IRA detainees during the “troubles” of Northern Ireland was one of the benchmarks the Bush Administration used in distinguishing between harsh treatment and actual torture. A 1978 ruling by the European Court of Human Rights found that “stress positions,” “hooding,” and sleep deprivation did not, in fact, constitute torture.

President Obama was then asked whether he had read the memos recently mentioned by former Vice President Dick Cheney as evidence of the effectiveness of enhanced interrogations. Yes he had, he said, immediately adding that “they haven’t been officially declassified and released, and so I don’t want to go into the details of them.” The fact that he didn’t rebut Mr. Cheney’s point about what the interrogations yielded suggests that the memos would prove the former Veep’s point. Mr. Obama should release all the memos and let Americans judge for themselves — though perhaps that’s precisely why he won’t release them.

The President wrapped up by saying “there have been no circumstances during the course of this first hundred days in which I have seen information that would make me second-guess the decision that I’ve made.” We sure hope he’ll be able to say the same about the next four years.

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Full article: http://online.wsj.com/article/SB124113499670175211.html

The Surgeon and the Torture Memos

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Having trained medical students, I’ve come to recognize a familiar pattern of behavior when young doctors hold a scalpel for the very first time. Most people — actually anyone who has experienced even a paper cut — are hesitant to slice through flesh. Aspiring surgeons are no different. Their first efforts are tentative and almost always memorable.

“Really, me?” I asked, the first time I was handed the knife. I cupped my hand as if to accept a communion wafer but was taken aback by the scalpel’s weight, a sure sign in my mind of the instrument’s gravitas. Like doctors-in-training before and after me, I wrapped my fingers around the handle in a kind of death grip and winced as the belly of the blade touched the patient’s body. And as much as I’d like not to admit it, my hand shook, so great was my fear of pushing too hard and slicing too deep.

In the end, my first attempt at a surgical incision left barely a line on the patient’s skin. The mark was so tentative and so puny that even my cat wouldn’t have deigned to claim the scratch as her own.

These days I have to try hard to remember the surge of adrenaline and the extent of my fear that very first time. After years of training, cutting began to feel second nature to me, the scalpel merely an extension of my fingers. So when a friend earlier this week told me that she could never imagine cutting into another person and wondered how young doctors learn to do so, I had to stop and think before I could respond to her.

“Habituation,” I finally said. “You get used it.”

That response, and the idea of becoming habituated, has been haunting me ever since. Is it possible for all of us to become habituated to the horrific?

Two weeks ago, the Justice Department declassified four memos regarding the interrogation techniques approved by the Bush Administration and used by the C.I.A. with senior level Al Qaeda members. The details of these documents made my skin crawl; there are cool descriptions of dousing detainees with water at 41 degrees, forced nudity, slamming detainees into walls and waterboarding.

But my mind kept wandering back to one thing: the seemingly ordinary professionals who were responsible. These were lawyers, psychologists, physicians, judges, and military and C.I.A. personnel, not just a rogue group of marginalized military grunts. In fact some of these individuals seemed hardly different from, well, me. A few were even the kind of hometown denizens I might admire.

Take, for example, Jay Bybee, former assistant attorney general and now a judge on the United States Court of Appeals. In addition to his busy job, Mr. Bybee is a father to four children and has managed to serve as both a cubmaster for the Boy Scouts and an assistant coach for youth baseball and basketball. I am lucky if I can pack lunch for my two kids and get to work on time.

The reason I keep thinking about my response to my friend’s question is that I know it is possible for even sensitive souls to become habituated to a range of grisly tasks. I am someone who has learned — become habituated — to performing a whole host of unusual and, depending on your point-of-view, potentially gruesome undertakings: poking sharp objects into other people, removing organs and extremities, and switching parts between the dead and the living. And as I implied to my friend, even cutting the flesh of another human being can become just another part of your day job.

What renders a surgeon’s work different and humane, however, is not just the individual doctor’s desire to do the right thing by his or her patients (though I seriously wonder if Jay Bybee thought he was doing the right thing by his fellow Americans when he listed the 10 acceptable interrogation techniques, waterboarding among them). It is the surgeon’s commitment to and steadfast compliance with his profession’s code of ethical conduct. It is a constant awareness of the extraordinary trust that patients and the public place in their physicians, a trust that entails transparency and accountability in the patient-doctor relationship.

As I see it, the problem now with these documents is not that our trust in those accountable has been shattered. It is that the rest of us are beginning to show signs of becoming habituated to such transgressions.

Americans have been aware of brutal interrogation techniques for several years now: the first pictures from Abu Ghraib were shown five years ago this week, and the declassified documents in fact hold little new information. And while our current president speaks of moving forward, and not looking back at this chapter of our history, can we afford to turn away?

In doing so, we accept how we have become habituated. We risk seeing the brutality not as an atrocity but as part of who we are. We become the surgeon who might have shook when first taking the knife in hand but who now dares to cut with eyes closed.

PAULINE W. CHEN, M.D.

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Full article and photo: http://www.nytimes.com/2009/04/30/health/30chen.html?hpw

Judge Who Signed Interrogation Memos Invited to Testify

Senate Judiciary Chairman Patrick J. Leahy today invited federal judge Jay S. Bybee to testify about his role in preparing two Justice Department memos that allowed interrogators to engage in simulated drowning and slamming prisoners against a wall.

Bybee, who has been a judge on the U.S. Court of Appeals for the 9th Circuit for the past six years, previously headed the department’s Office of Legal Counsel. During his tenure there in the Bush administration, Bybee offered advice to the executive branch about whether CIA interrogation methods would violate laws banning torture.

His signature appears on memos from August 2002 that determined al-Qaeda suspect Abu Zubaida could be deprived of sleep for as long as 11 days and that the captive could be subjected to waterboarding.

A year after those memos were issued, but before they became public, Bybee was confirmed by the Senate to the federal bench, realizing one of his long-standing professional ambitions.

“There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated . . . and the role played by the White House,” Leahy said in his letter to the judge.

Bybee is one of three Bush OLC lawyers under investigation by Justice Department ethics watchdogs. The department’s Office of Professional Responsibility is examining whether Bybee, John C. Yoo and Steven G. Bradbury followed professional standards when they drafted memos underpinning interrogation techniques that critics liken to torture. The ethics watchdogs have the power to make recommendations to state legal disciplinary boards.

Erica Chabot, a spokeswoman for Leahy, said the lawmaker has not sent letters inviting testimony from Yoo and Bradbury but did not foreclose the possibility that they too would be contacted. Both men have left government service.

A lawyer for Bybee, Maureen Mahoney, had no immediate response to requests for comment on the Leahy letter.

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Full article: http://www.washingtonpost.com/wp-dyn/content/article/2009/04/29/AR2009042902838.html?nav=hcmodule