A Torture Paper Trail

I still find it hard to believe that George W. Bush, to his eternal shame and our nation's great discredit, made torture a matter of hair-splitting, legalistic debate at the highest levels of the U.S. government. But that's precisely what he did.

Three previously classified administration memos obtained last week by the American Civil Liberties Union add to our understanding of this disgraceful episode. The documents are attempts to justify the unjustifiable -- the use of brutal interrogation methods that international agreements define as torture -- and to keep those who ordered and carried out this dirty business from being prosecuted and jailed.

The memos don't call it torture, of course. Heavily redacted before being surrendered to the ACLU under a Freedom of Information Act lawsuit, the documents refer euphemistically to "enhanced techniques" of interrogation. Changing the name doesn't change the act, however. One memo, written in 2004, specifically makes clear the administration's view that "the waterboard" is an acceptable way to extract information.

Waterboarding, a technique of simulated drowning, is considered torture virtually everywhere on Earth except in the Bush administration's archive of self-exculpatory memos, directives and opinions.

he most stunning of the memos -- written in August 2002 by Jay Bybee, who was head of the Justice Department's Office of Legal Counsel -- makes the incredible claim that unless a torturer has the "specific intent" to inflict severe pain or suffering, no violation of U.S. laws against torture has occurred. Bybee, since appointed to the federal bench, wrote that the torturer needed only the "honest belief" that he was not actually committing torture to avoid legal jeopardy. Oh, and Bybee added that it wasn't even necessary for that belief to be "reasonable."

The memo notes that U.S. torture statutes outlaw the infliction of severe mental pain as well as physical pain. It acknowledges that "the threat of imminent death" is one of the specific acts that can constitute torture. Somehow, though, the administration pretends not to understand that strapping a prisoner down and pouring water into his nose until he can't breathe constitutes a death threat -- regardless of whether the interrogator intended to stop before the prisoner actually drowned.

Perhaps that question was dealt with in the nine-tenths of the memo that was redacted before the administration handed it over to the ACLU. The memo never would have been released at all if the government hadn't been ordered to do so by a federal judge.