There is a 50 page Memorandum the American government doesn’t want you to see. It’s titled "Memorandum for Alberto R. Gonzales, Counsel to the President", and you can find it at the Washington Post. The American government is uneasy about this little document because it does the following three very troubling things: (1) places the actions of the American Commander-in-Chief above and beyond criminal and international law; (2) provides an outline of all that is “cruel, inhuman, or degrading treatment or punishment”, but falls short of being defined as torture; and, (3) outlines two legal forms of “defense” against the criminal charge of torture were the need to arise.
Do understand that this Memorandum is not some random opinion piece but, as indicated by the Washington Post, rather a document “akin to a binding legal opinion on government policy on interrogations”.
The one critical problem with this memo –” something no one has addressed yet –” is the fact that it discusses the use of torture, the legal defenses on behalf of torture, and the extension of Commander-in-Chief powers (without accountability) against Al-Qaeda operatives and their allies in the context of September 11. This is a fundamental problem because there have been no links made between Iraq and Al-Qaeda in the context of September 11; in fact, there exists a history of hate (read: not amity) between Saddam and Bin Laden, and so the extension of the rules of engagement as outlined in this memo ought to be null and void. But no one seems to care about that very pressing reality, extending the defenses in this memo to the actions of the American psychopaths who “allegedly” tortured the Iraqi prisoners.
The reason no one cares is because they’re too busy asking all of the wrong questions. The frightening skirting of the issue has become an all-too familiar reality in American politics, as was best depicted by that elusive Q: “Did the CIA make a mistake when they ‘found’ ample evidence for the existence of WMD in Iraq?” rather than the more a propos Q: “Who asked the CIA to doctor the evidence for the existence of WMD, so that the USA would have a pretext to attack and occupy Iraq?”
Since no one is paying attention to the above reality, then I too am forced to address the more banal issue of torture as it was defended in this Memorandum, in the context of what we would come to know as the Abu Ghraib horror.
Briefly, the Assistant Attorney General Jay S. Bybee concluded that in order for violent acts to amount to either physical or mental “torture” they must fall within the definition of “serious physical injury, such as organ failure, impairment of bodily function, or even death”, or the effects of which “must result in significant psychological harm of significant duration e.g. lasting for months or even a year”. And so the quantification of “torture” begins at “severe” or “the most egregious conduct” and is not considered “torture” if it falls within the confines of “inhuman, degrading and cruel” forms of interrogation and/or punishment. With this in mind, one might just agree that forcing groups of Muslim (specifically) men to mimic queer orgies may be “inhuman” but is not “torture”.
Not guilty! (Says Bush)
More important is the following loop-hole raised by Bybee: in order for the criminal charge to stick, the accused must have inflicted the pain with “specific intent” to accomplish the precise act for which they are being charged (e.g. “torture”). In this instance, it would be easy for the accused to plead not guilty along the following lines: “Although I knew that handcuffing naked Ahmed to the cell, and having Eatem my raging bulldog standing before Ahmed would result in severe pain, it was not my intention or objective to inflict severe pain.”.
Not guilty! (Says Condi)
This loop-hole extends to the use of the concept of the threat of “imminent death” as amounting to torture, but not the more “we are all dying, and so it doesn’t matter if I eventually off you” or “see this angry and vicious dog standing before your naked body? I might let him eat you alive, ha ha ha” joking friendly banter characteristic of the men and women of the American military.
Not guilty! (Says Rumsfled)
More evidence of Bybee’s perversion of language is clear in his discussion of drugs or procedures that would “disrupt profoundly the senses or personality” and how the drugs must be extreme in nature, and the active intention of the accused to commit an act of torture before they can be held accountable or responsible in the name of “torture”. In this extension to the first loophole, the defense would sound a little something like: “The drugs I gave Mohammed placed him in a psychotic state for a mere 24 hours, and only disrupted his senses and personality a lot, rather than ‘profoundly’. And, like, honestly…I didn’t intend to commit torture or inflict severe pain. Am terribly sorry that after the 24 hours, he became a vegetable, but it was not my conscious design to do so.”.
Not guilty! (Says Ashcroft)
Most interesting and pressing in this Memo was Bybee’s advancement of two forms of defense: the catch all of a "necessity" defense, and the culmination of one nation’s hysteria behaving in "self-defense".
The “necessity” defense is an unbridled form of pre-emptive attack, and can be used to justify homicide “so long as the harm avoided is greater.” This defense would read like so: “I beat the Iraqi Mostafa to a dead pulp because my intention was to avoid his intentions of murdering the Americans Bob and Mike.” Troubling is that there is nowhere an indication that clear and real evidence of Mostafa’s threat must be readily available, or Mostafa given the opportunity to defend the accusations; this means that under circumstances of interrogation, where the interrogatee is being tortured and even if they die at the hands of the interrogator, if the intention of the interrogator was to avoid possible “terrorist attacks”, then the interrogator is…
Not guilty! (Says Powell)
The “self-defense” doctrine reads along the lines of the “necessity” doctrine, and can be invoked “to prevent harm to another person” in circumstances like “the threat of an impending terrorist attack” that threatens the “lives of hundreds, if not thousands of American citizens”.
Nowhere is there mention of due process, of guilty until proven innocent, or the right to hear evidence held against the individual in their efforts to defend themselves. Frankly, we should expect no less from a country who defied the international legal sphere and attacked another sovereign state under a false and manipulated pretext.
In a nut-shell this means that those being held at Guantanamo Bay, as well as the detainees in the prisons of Afghanistan and in Iraq have absolutely no rights (this Memo only addresses the charge and definition of torture outside of American borders). Furthermore, the Commander-in-Chief (Bushy must get a tickle out of such a macho title), along with the henchmen interrogating on his behalf, possess the defense of omnipotence.
This Memorandum was issued in August of 2002.
Justification and defense lest something be leaked? The imminent answer would have to be “Yes”.