White House Used Twisted Health Language to Justify Torture

John Yoo, the author of the infamous Aug. 1, 2002, "torture memo" that formed the legal basis for so-called "enhanced" interrogation techniques against high-level terrorist detainees, used a statute governing health benefits when he provided the White House with a legal opinion defining torture, according to a former Justice Department official.

Yoo's legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.

Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, therefore was not considered to be torture.

Jack Goldsmith, the former head of the Department of Justice's Office of Legal Counsel, said that Yoo, a former OLC attorney who now teaches at the University of California at Berkeley, arrived at that definition by relying on statute written in 2000 related to health benefits.

"That statute defined an 'emergency medical condition' that warranted certain health benefits as a condition 'manifesting itself by acute symptoms of sufficient severity (including severe pain)' such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function," Goldsmith wrote in his book, The Terror Presidency.

"The health benefits statute's use of 'severe pain' had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define 'severe pain.' Rather it used the term 'severe pain' as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like ... OLC's clumsily definitional arbitrage didn't seem even in the ballpark."

Earlier this week, Sen. Dick Durbin, D-Illinois, wrote a letter to the Justice Department's inspector general and the agency's office of professional responsibility requesting an investigation into the department's authorization of waterboarding, specifically, how Yoo and others in the OLC formed the legal basis for waterboarding and whether DOJ standards and policies were met when OLC reached it's conclusions on the technique.

"Did Justice Department officials who advised the CIA that waterboarding is lawful perform legal work that meets applicable standards of professional responsibility and internal Justice Department policies and standards? For example, did these officials consider all relevant legal precedents, including those that appear to contradict directly their conclusion that waterboarding is lawful?" stated Durbin's Feb. 12 letter to DOJ Inspector General Glen Fine.

On Feb. 13, the Senate narrowly passed legislation banning waterboarding as well as other brutal interrogation tactics used by the CIA. President Bush has vowed to veto the legislation.

Goldsmith claims that after reviewing various arguments and opinions in Yoo's August 2002 "torture memo," particularly "any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-Chief authority in the president, has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law."

Goldsmith, who was tapped to head the OLC in October 2003, determined after eight weeks as head of OLC that Yoo's "torture memo" was "legally flawed," sloppily written, and called into question whether the White House was provided with sound legal advice.

That conclusion, along with Yoo's reliance on a health benefits statute to form a legal opinion regarding torture, may factor into whether the DOJ's inspector general and office of professional responsibility decide to probe the matter.