bybee.thumbnail.jpgPresident Obama deserves huge applause for releasing the OLC torture memos, as do the people in the Administration who fought for it. It’s a brave move certain to bring down right wing howler monkeys crying about threats to national security, but a huge step toward restoring the rule of law in the United States.

While at the Office of Legal Counsel, Jay Bybee wrote the "insect memo" to authorize the torture on Abu Zubaydah, an Al Qada operative captured in Pakistan in 2002. His experience became George Bush’s prime example for the efficacy of and need for torture. From Bush’s 2006 speech:

We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful.

Bush claimed that Zubayah gave up three critical pieces of information that justified the use of "an alternative set of procedures":

  1. The alias of Khalid Sheikh Mohammed ("Muktar"). But According to the 9/11 report, the CIA already knew this in August 2001.
  2. The fact that an operative (who was subsequently detained) was planning an attack on the US. In her book The Dark Side, Jane Mayer says this is a reference to Josee Padilla — but Zubayda told this to his interrogators prior to being tortured.
  3. Information that led to the capture of Ramzi bin al Shibh. But Ron Suskind claims that it was information from an al-Jazeera reporter that led to bin al Shibh’s capture, and as Mayer notes, the fact that he wasn’t captured for a year and a half after Zubayda lends credence to Suskind’s claim.

So, the notion that we got anything of value from Zubayda is dubious — but if we did, why did the CIA destroy the tapes of Zubaydah being tortured? Wouldn’t they want it around as proof?

Zubaydah had been shot three times at the time of his capture. And Suskind claims that he was also quite mentally ill. Nonetheless, here’s what Bybee found to be legal:


According to Glenn Greenwald, a "confinement box" is a coffin-like space. Bybee said that the interrogators could exploit Zubaydah’s fear of insects by telling him that a stinging insect was being placed inside the box, and then using a caterpillar. Or, they could simply put insects in the box without telling him anything about them. The memo describes in excruciating detail what Bybee found acceptable.

As Glenn notes, the memo "concludes that ‘the use of waterboarding constitutes a threat of imminent death,’ but is nonethless permissible and legal because it does not result in "prolonged mental harm."

These details match up very closely with what Zubaydah himself described about his treatment. Zubaydah says that he was told he was a "guinea pig," that these techniques had never been tried on anyone else before — that he was a torture "experiment."

Bybee cites no medical evidenc for determining whether these techniques were "safe" or not, nor — as Jane Mayer has documented — was there ever any research into the efficacy of torture as an effective means of questioning. Bybee had no reason to believe, as Bush asserted, that these techniques were designed to be "safe." And contrary to George Bush’s claims, the Red Cross has determined that the methods used against Zubaydah are "categorically" torture, which is illegal under both US and international law.

Jay Bybee’s job, since 2003, has been sitting on the 9th Circut Court of Appeals, deciding what is an isn’t constitutional. In the wake of the release of these documents, which Andrew Sullivan rightly calls an "unprofessional travesty of lawyering," he ought to resign.

We’re going to be calling for a Special Prosecutor tomorrow, so more on that later, but in the mean time — there is ample evidence that we need one. The administration officials who ordered torture, and the lawyers who made it legal, need to be investigated and held accountable. And that’s not going to happen without public pressure that gives Eric Holder the space to do it. You can sign the petition here.

Jane Hamsher

Jane Hamsher

Jane is the founder of Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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