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The Bybee Memo – The Very Anatomy of Evil

The Dog is not a believer in many things but gods is one particular category. As such he almost never uses the word evil, but there are times when this religiously based word is the only apt one in English. Today the Dog has seen evil, in the form of a memo which does a legal tap dance to justify a torture technique known as waterboarding.

Waterboarding has to be one of the most heinous tortures invented by man. It has been used in many societies for the very simple reason; anyone subjected to it will be in such fear, such pain that they will quite literally do anything to make the torturers stop. This was true in Inquisition, it was true in WWII and it is still true today.

The basic procedure is to tie a victim (and lets not pretend that anyone who has this done to them is anything but a victim) to a board with their head below the level of their feet. A cloth is placed over their mouth and nose and then water is poured onto the cloth. It reduces the amount of oxygen getting into the victims system, and as the CO2 level rises the body reacts as if it is drowning. This happens even to people who know they are not going to be killed, who have consented to this procedure as part of training. They know that help is there and they are in the hands of their fellow soldiers, yet they still experience pain and panic.

Abu Zubaydah was in our custody. The CIA believed they could get more information out of him if they were allowed to do 10 specific techniques but they wanted to know if it would be torture. One of them was sure to be waterboarding; this is clear from the torture memo released today. No matter what other techniques that CIA was going to perform, this would be the culminating technique. They asked the Justice Department to rule for them whether a technique which had been considered torture for centuries, a technique which the United States had prosecuted and executed people for carrying out was torture.

Instead of point the above facts out Mr Bybee went on a legal tail chase to find a way to justify it. He looked at the fact that we had used this technique for training our soldiers to resist in the SERE program. He got trainers to say they had found very little instances of permeate psychological or physical harm from being trained this way. Then he looked at that law and found that you could not use a technique which would cause “severe physical or mental pain”.

Then he wrote this:

As we understand it, when the warterboard is used, the subjects body responds as if the subject were drowning – even though the subject may be well aware that is in fact not drowning. You have informed us this procedure does not inflict physical harm. Thus, although the subject may experince the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. As we explained in the Section 2304A Memorandum, "pain and suffering" as used in Section 2340 is best understood as a single concept, not distinct concepts of "pain" as distingished from "suffering".


The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view inflict "sever pain and suffering". Even if one were to parse the statute more finely to attempt to treat "suffering" as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.

You can find the whole thing at this link

Do you see what he has done? He is saying because waterboarding does not actually harm you physically (meaning you a likely to survive it) you could not be suffering pain. This is a total fallacy, as anyone who has held there breath underwater for a long time can tell you. This is where evil creeps in. To willfully ignore common place facts in order to justify a known torture technique can be nothing less than evil.

It is an attorney’s job, when acting as defense council, to provide any theory which may be accepted as justification or exculpation for the defendants accused crime. This is a good and important aspect of our system of justice. However, it is also an attorney’s job to advice his client if asked what is legal and what is not. This is based on more than just the law as we can see above. Mr. Bybee blithely accepts, against common experience, the claim that waterboarding does no harm so can cause no pain.

This goes beyond the practice of law. This is the very definition of the malpractice of law. Even if Mr. Bybee were to be allowed a little leeway in this acceptance of the CIA’s assertion of no harm, he as an attorney should not have written a justification of a known criminal act, both under US and International Law. His response should have been there is no legal way to do this, if you do this you will be culpable and you should not even think of doing it.

Mr. Bybee should have seen a red flag when the US Military trainers asserted this technique was irresistible. Torture by its very definition is irresistible, it is so painful, so horrifying anyone subjected to it will do or say anything to prevent it from continuing. Instead, he wrote this memo.

The Dog understands it is the Obama administration’s position that those who carried out these acts while relying on this reasoning will not be investigated or indicted. This is a disappointment, but can, in some political necessity fashion be understood if not accepted. However, this is not true for Mr. Bybee. This is a man who, there is no other way to say it, willfully justified evil.

He must be investigated and punished. To fail to do so not only guarantees this will happen again, it completely makes a mockery of our system of law and justice. We can not allow this to go unchallenged. As pointed out in comments, this man, this man of monstrous evil and no conscience is a Federal Judge.

The floor is yours.

Bill Egnor

Bill Egnor

I am a life long Democrat from a political family. Work wise I am a Six Sigma Black Belt (process improvement project manager) and Freelance reporter for