Twisting the "Torture Memos"

You can be forgiven if you have come to believe that Alberto Gonzales personally approved the abuse of Iraqi prisoners at Abu Ghraib, because as false as that notion is, it is also the folk belief perpetuated either purposefully or unwittingly by mainstream news outlets.

The most recent example comes in today's New York Times in an editorial calling for Democrats to reject the President's nomination of Gonzales to Attorney General.

The biggest strike against Mr. Gonzales is the now repudiated memo that gave a disturbingly narrow definition of torture, limiting it to physical abuse that produced pain of the kind associated with organ failure or death. Mr. Gonzales's attempts to distance himself from the memo have been unconvincing, especially since it turns out he was the one who requested that it be written. Earlier the same year, Mr. Gonzales himself sent President Bush a letter telling him that the war on terror made the Geneva Conventions' strict limitations on the questioning of enemy prisoners "obsolete."

The "now repudiated memo" is the Bybee Memo (aka, the "torture memo") written by Assistant Attorney General Jay S. Bybee in response to a request by the CIA for legal advice in how they might handle the interrogation of one of Osama bin Laden's chief recruiters, Abu Zubaydah.

In this excellent (and must-read) article in City Journal, Heather MacDonald provides a bit of background.

Bybee argued that a U.S. law ratifying the 1984 Convention Against Torture—covering all persons, whether lawful combatants or not—forbade only physical pain equivalent to that “accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or mental pain that resulted in “significant psychological harm of significant duration, e.g., lasting for months or even years.” More troubling still, Bybee concluded that the torture statute and international humanitarian treaties did not bind the executive branch in wartime.

This infamous August “torture memo” represents the high (or low) point of the Bush administration’s theory of untrammeled presidential war-making power. But note: it had nothing to do with the interrogation debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba. These soldiers struggling with al-Qaida resistance were perfectly ignorant about executive-branch deliberations on the outer boundaries of pain and executive power (which, in any case, were prepared for and seen only by the CIA). “We had no idea what went on in Washington,” said Chris Mackey in an interview. A GuantΩnamo lawyer involved in the Kahtani interrogation echoes Mackey: “We were not aware of the [Justice Department and White House] debates.” Interrogators in Iraq were equally unaware of the Bybee memo.

The memo was a document of legal advice, and was understandably devoid of value judgments on the morality of extreme interrogation techniques. If you've ever read legal documents, you know immediately the sort of dry, unemotional language present. But most importantly, it was not a "how to torture" memo that interrogators immediately adopted.

The letter from Alberto Gonzales, dated January of the same year, weighed the positives and negatives of Sec. of State Colin Powell's advice that Al-Qaeda and Taliban prisoners should be given POW status under the Geneva Convention rules. This letter is in similarly straightforward language. Gonzales did counsel against following Powell's advice for various legal reasons. But the context is one of international law and diplomacy. Gonzales most certainly did not write a memo calling for torture.

Nevertheless, the New York Times connects Gonzales directly to Abu Ghraib.

These actions [the creation of the memos] created the legal climate that made possible the horrific mistreatment of Iraqi prisoners being held in Abu Ghraib prison.

The word I want to use is not one for polite discourse, so instead I will simply say: Great heaping mounds of steaming bovine excrement!

What happened at Abu Ghraib had nothing to do with interrogation practices that are the subject of the memos in question. What happened at Abu Ghraib was prisoner abuse. Learn the difference.

In the same article quoted earlier, Heather MacDonald writes:

Nevertheless, when the Bybee analysis was released in June 2004, it became the capstone on the torture narrative, the most damning link between the president’s decision that the Geneva conventions didn’t apply to terrorists and the sadistic behavior of the military guards at Abu Ghraib. Seymour Hersh, the left-wing journalist who broke the Abu Ghraib story, claims that the Bybee torture memo was the “most suggestive document, in terms of what was really going on inside military prisons and detention centers.”

But not only is the Bybee memo irrelevant to what happened in Abu Ghraib; so, too, are the previous interrogation debates in Afghanistan and Cuba. The abuse at Abu Ghraib resulted from the Pentagon’s failure to plan for any outcome of the Iraq invasion except the most rosy scenario, its failure to respond to the insurgency once it broke out, and its failure to keep military discipline from collapsing in the understaffed Abu Ghraib facility. Interrogation rules were beside the point.

The New York Times doesn't want to learn the difference. To them it's all one great tapestry, from the abhorrent prisoner abuse in Abu Ghraib to legitimate questioning of the well-feed, well-cared-for prisoners at Guantanamo.

Pay attention to what Senate Democrats are saying. When they connect Gonzales to the abuse at Abu Ghraib, you can bet they've probably never read the "torture memos" they keep talking about.

But they certainly know how to play political football.



More: In this more recent article, Heather MacDonald takes Andrew Sullivan to task for the way he confuses the issue in this past weekend's New York Times Book Review.