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Whitewashing Torture

By Curtis M. Brown

The journalist Mark Danner has described systematic torture in American detention facilities as a scandal that “survived its disclosure.” Danner’s elegant phrase points to the total failure of hierarchal accountability in the wake of revelations of abuse, and it suggests our complicity in this failure. We express our revulsion at the Abu Ghraib photos, while averting our eyes from the paper trail leading conclusively upwards from there.

This disconnect—whereby we vilify those who carry out repellent policies while bowing deferentially to those who devise them—was vividly in evidence here at Harvard last week. It would be unthinkable for a Harvard student organization to host, say, Private Lyndie England, who on the retina of the collective imagination will be forever giving the thumbs-up to the degradation of a fellow human being. But the Harvard Law School Federalist Society thought nothing of inviting Judge Jay S. Bybee, whose infamous “torture memo” of August 2002 gave the thumbs-up to the degradation of hundreds—if not thousands—of human beings, to give a speech on constitutional law.

By not only hosting Bybee but guaranteeing him a forum free of dissent, the Federalist Society has made Harvard complicit in an ongoing whitewash. To understand how Bybee’s reputation has been laundered, we need to look briefly at the history of the torture memo he authored.

Written when its author was Assistant Attorney General for the Office of Legal Counsel, the Bybee memo guided Bush Administration policy towards detainees for almost two years. When its contents were leaked in the summer of 2004, the memo prompted widespread public disgust and was quickly repudiated by the Bush administration.

The document itself is a 50-page patchwork of frightening absurdities. Ingeniously interpreting existing laws, Bybee reasons that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” He argues that “the infliction of such pain must be the defendant’s precise objective” for torture to have occurred, adding that “knowledge alone that a particular result is certain to occur” doesn’t suffice. Pain itself—not, say, eliciting information—has to be the animating motive.

Bybee’s sophistries are threaded together with a kind of ghoulish moral imperviousness. He speculates that it is “likely” that a court would find that “electric shocks to genitalia” constitute torture. Describing someone being forced to his knees and kicked in the stomach with military boots, however, Bybee decides that the resulting agony would not amount to “severe pain or suffering”—and would thus be permissible.

Having whittled the criminal definition of torture down to a nullity, Bybee then argues that the president can order it done anyway. “Executive officials can escape prosecution if they are carrying out the president’s orders as commander in chief,” Bybee writes, invoking the infamous defense the United States had rejected for Nazi war criminals at Nuremberg.

Harold H. Koh ’75, a dean and professor of international law at Yale, described the Bybee memo to the Senate Judiciary Committee as “the most clearly erroneous legal opinion I have ever read,” noting that it so “grossly overreads the President’s constitutional power” that it could even be used to justify genocide. “Experts in the law of war say his memo is evidence suggesting he participated in a war crime,” wrote John Dean, former counsel to the president during the Nixon Administration.

“We’re scrubbing the whole thing. It will be replaced,” one Department of Justice official told USA Today, aptly if unwittingly evoking the coming whitewash. The White House and the Department of Justice distanced themselves from Bybee’s memo. But this cold-shoulder treatment was almost entirely without consequence: even as the memo’s interpretations were publicly renounced, they were quietly transferred—whole paragraphs verbatim—into subsequent memos, which are still operative.

As for Bybee himself, the Senate had already confirmed him for a lifetime seat on the Ninth Circuit Court of Appeals by the time the torture memo was leaked. Gonzales was less fortunate in his timing, and faced numerous questions about the memo during his confirmation hearings for Attorney General. Not having authored it, however, he simply disowned it—an illuminating case study in how deniability supplants accountability.

The Federalist Society has now effectively enlisted Harvard in the process of “scrubbing the whole thing” from Bybee’s résumé. The Alliance for Justice in the Middle East (which I am a member of) and the Law School Advocates for Human Rights together decided to ensure that those who came to hear Bybee speak would not remain in the dark about his background. It should be stressed that we neither planned nor carried out a “disruptive” protest, as has been falsely claimed by the Federalist Society. We didn’t even enter their meeting; we demonstrated outside, and waited respectfully until it was finished to do so.

It is indeed the Federalist Society’s skulking, furtive handling of the event—misleading the public about a cancellation “due to a scheduling conflict” while convening elsewhere in secret, refusing to stand behind their speaker and face legitimate dissent in the customary manner—that is perhaps most encouraging. As the show trials of various “bad apples” continue, those who cultivate them are honored with speaking engagements. But the evident shame of everyone involved in the Bybee appearance may be an indication that the scandal of torture cannot survive its disclosure forever.

Curtis M. Brown is a seventh-year English PhD student and a member of the Alliance for Justice in the Middle East.

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