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Judge Bybee's Memo and Abu Zubaydah's Illegal Interrogation

By Tommy Crocker

Does Jay Bybee's August 1, 2002 memo provide legal authorization for the August 2002 waterboarding of Abu Zubaydah?  There is good reason to conclude that it does not.  Kevin Heller at Opinio Juris argues that the CIA failed to follow its own SERE program guidelines, and therefore went beyond the legal authorization.  He writes:  

"Bybee's 1 August 2002 memo was the only one issued before the CIA waterboarded KSM and Zubaydah.  And that memo makes clear (see particularly pp. 4-6) that Bybee's authorization was based on representations by the CIA that its waterboarding regime followed the guidelines . . . which were based on the use of waterboarding for training purposes at the SERE school.  Yet the CIA completely ignored the SERE guidelines when it waterboarded KSM and Zubaydah." 

I think Heller makes a very important argument, and would like to articulate further why the waterboarding of Zubaydah exceeded Bybee's August 2002 memo in particular.  Here's why. 

Bybee accepts without question the CIA's self-serving descriptions of the physical and mental effects of the interrogation techniques.  He does so probably in bad faith as Brian Tamanaha argues at Balkinization, but he does not do so without qualification.  He places limits on the application of his legal analysis.  At the beginning of his analysis he clarifies.  "We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts.  If these facts were to change, this advice would not necessarily apply."  At the end of the analysis, Bybee writes:  "[W]e conclude that on the facts in this case the use of these methods separately or a course of conduct would not violate Section 2340A."  If the analysis is limited to the facts presented, what are the facts?

For starters, the facts indicate some flexibility in the use of the ten interrogation techniques.  They would be used "in some combination," and "in some sort of escalating fashion."  They would be used "on an as-needed basis and that not all of these techniques will necessarily be used."  But the facts also establish limits on the use of these techniques:  "Moreover, you have also orally informed us that although some of these techniques may be used with more than once, [sic] that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions."  And again, considering the use of the techniques in combination, Bybee writes, "[y]ou have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition." 

Bybee's memo explicitly limits the scope of legal authorization to the facts as presented.  Those facts provide that there will be no "substantial repetition" of the techniques because they lose their effectiveness with repetition.  Bradbury's memo reveals that Zubaydah was subject to waterboarding "at least 83 times," a number I think that clearly exceeds any vagueness regarding "substantial repetition."  Therefore, whoever authorized and conducted waterboarding on Zubaydah 83 times exceeded the scope of Bybee's legal authorization.  Likewise, anyone who relied on Bybee's memo in waterboarding Khalid Shaikh Mohammed 183 times also exceeded the scope of the memo's legal authorization. 

To the extent that Bybee's memo was meant to provide legal cover for government officials at all levels to engage in practices that would otherwise constitute torture, it fails to do so for those persons involved in the repetitive waterboarding of these high value detainees.  President Obama?s statement accompanying the release of the memos does not help. "In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon the legal advice from the Department of Justice that they will not be subject to prosecution."  If one exceeds the scope of that legal advice, one can have no good faith reliance.

The only way out of this conclusion I see is to argue that the memo is not entirely limited to the facts presented; rather, it warns that if facts change "this advice would not necessarily apply."  "Necessarily" has to carry a lot of water here (no pun intended).  I do not think it can.  The actual facts of Zubaydah's interrogation greatly surpass those contemplated by Bybee's memo. 

Bybee concludes his memo with an additional limitation:  "We wish to emphasize that this is our best reading of the law; however, you should be aware that there are no cases construing this statute; just as there have been no prosecutions brought under it."  As I?ve argued here, even under Bybee's best reading of the law, officials broke it.  Prosecutions will bring some clarity and grounding to the law.  I don?t see how prosecutions can be avoided.

Full post as published by The Faculty Lounge on April 23, 2009 (boomark / email).