George W. Bush's Justice Department said subjecting a person to the near drowning of waterboarding was not a crime and didn't even cause pain, but Ronald Reagan's Justice Department thought otherwise, prosecuting a Texas sheriff and three deputies for using the practice to get confessions.
Federal prosecutors secured a 10-year sentence against the sheriff and four years in prison for the deputies. But that 1983 case -- which would seem to be directly on point for a legal analysis on waterboarding two decades later -- was never mentioned in the four Bush administration opinions released last week.
The failure to cite the earlier waterboarding case and a half-dozen other precedents that dealt with torture is reportedly one of the critical findings of a Justice Department watchdog report that legal sources say faults former Bush administration lawyers -- Jay Bybee, John Yoo and Steven Bradbury -- for violating "professional standards."
Bybee, Yoo and Bradbury also shocked many who have read their memos in the last week by their use of clinical and legalistic jargon that sometimes took on an otherworldly or Orwellian quality. Bybee's August 1, 2002, legal memo -- drafted by Yoo -- argued that waterboarding could not be torture because it does not "inflict physical pain."
During the procedure, a subject is strapped down to a bench with his head lower than his feet and his face covered by a cloth that is then saturated with water, cutting off his breathing and inducing the panic reflex that a person feels while drowning.
"You have informed us that this procedure does not inflict actual physical harm," Bybee wrote. "Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. ... The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."
Bush administration officials approved CIA waterboarding for three "high-value" detainees, including Abu Zubaydah (believed to be an al-Qaeda logistics operative) and Khalid Sheikh Mohammed (known as KSM, the alleged mastermind of the 9/11 attacks). Zubaydah was waterboarded at least 83 times and KSM at least 183 times, according to one Justice Department memo.
Bybee, whose memo gave legal cover for the initial use of waterboarding and nine other brutal interrogation methods, said his opinion -- as assistant attorney general in charge of the Office of Legal Counsel, which advises presidents on the limits of their legal powers -- represented "our best reading of the law." He cited scant history for the Convention Against Torture, which took effect in 1987.
"However, you should be aware that there are no cases construing this statute, just as there have been no prosecutions brought under it," Bybee wrote.
The Convention Against Torture makes it a crime for any "person acting under the color of law" to "inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."
Texas Case
That law was not in existence when the Texas sheriff, James Parker, and his deputies were prosecuted and sentenced in the 1980s. But Bybee, Bradbury and Yoo had a duty to their legal profession to cite the case as it would have changed the substance of their legal opinions, said Scott Horton, a human rights attorney and constitutional expert.
"Any competent legal adviser would, among other things, have looked at the techniques themselves and checked to see how they have been treated in prior cases," Horton said in an email. "Obviously the Anti-Torture Statute itself is a very recent invention and it has no enforcement history, so saying that and then suggesting on this basis that the situation is tabula rasa is highly disingenuous."
Horton suspects that Bybee, Yoo and Bradbury were well aware of the case law, but simply chose to ignore it in order to give the Bush administration what it had asked for.
"To take one example, there was a court-martial addressing the practice of waterboarding from 1903, a state court case from the twenties, a series of prosecutions at the [post-World War II] Tokyo Tribunal (in many of which the death penalty was sought) and another court-martial in 1968," Horton said. "These precedents could have been revealed in just a few minutes of computerized research using the right search engines. It's hard to imagine that Yoo and Bybee didn't know them.
"So why are none of these precedents mentioned? Obviously because each of them contradicts the memo's conclusions and would have to be distinguished away. Professional rules would have required that these precedents be cited, failing to do so reflects incompetent analysis."
In fact, the Justice Department's Office of Professional Responsibility (OPR) investigated whether the three lawyers purposely twisted their legal advice to satisfy the White House and knowingly avoided citing existing case law in order to reach conclusions the White House wanted. It's unknown what OPR has concluded about that point in its report, which is now being revised.
Beyond ignoring the case law on torture, Yoo, as a deputy assistant attorney general, pushed the theory that President Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force at a time of war.
"As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said Yoo in another memo dated August 1, 2002, and entitled "Standards of Conduct for Interrogation."
In that opinion, Yoo failed to cite the key precedent relating to a president's war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman's order to seize steel mills that had been shut down in a labor dispute during the Korean War.
Truman said the strike threatened national defense and thus justified his actions under his Article II powers in the Constitution.
But the Supreme Court overturned Truman's order, saying, "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Since Congress hadn't delegated such authority to Truman, the Supreme Court ruled that Truman's actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.
Yoo's Explanation
In his 2006 book, "War by Other Means," Yoo offered up a defense of his failure to cite Youngstown. "We didn't cite Jackson's individual views in Youngstown because earlier [Office of Legal Counsel] opinions, reaching across several administrations, had concluded that it had no application to the President's conduct of foreign affairs and national security."
Yoo added, "Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war. ...
"Detention and interrogation policy are at the heart of the President's Commander-in-Chief power to wage war, and long constitutional history supports the President's leading role on such matters."
But Horton disagrees. "The Youngstown case is considered the lodestar precedent addressing the President's invocation of Commander-in-Chief powers away from a battlefield," Horton told me via email.
"Justice Jackson's opinion is the most persuasive of the opinions justifying the decision," Horton said. "If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance.
"It's obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.
"But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did."
The four legal opinions released last week attempt to make the case that the "enhanced interrogations" of suspected terrorists needed to be done in order to save American lives and foil other plans to attack the United States. In defending the Bush administration's torture program, Republicans have likened the "high-value" detainees to mass murderers, who don't deserve to be treated humanely.
Texas Trial
At the trial of the Texas sheriff, Assistant US Attorney Scott Woodward said the prisoners who were subjected to waterboarding were not "model citizens," but they were still "victims" of torture.
"We make no bones about it. The victims of these crimes are criminals," Woodward said, according to a copy of the trial transcript. One of the "victims" was Vernell Harkless, who was convicted of burglary in 1977.
Gregg Magee, a deputy sheriff who testified against Sheriff Parker and three of the deputies said he witnessed Harkless being handcuffed to a chair by Parker and then getting "the water treatment."
"A towel was draped over his head," Magee said, according to court documents. "He was pulled back in the chair and water was poured over the towel."
Harkless said he thought he was "going to be strangled to death," adding: "I couldn't breathe."
One of the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act, but he was unaware that it was illegal. His attorneys cited the "Nuremberg defense," that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding.
That line of defense has come up in the current debate about whether CIA interrogators should be prosecuted for their roles in the torture of detainees. President Obama, CIA Director Leon Panetta and Attorney General Eric Holder have ruled out prosecuting CIA interrogators who acted on Justice Department legal advice.
Some other legal analysts have suggested that the ambiguity of the Bush administration's decision process - in which CIA interrogators suggested the harsh tactics, national security officials, including Condoleezza Rice, concurred, and Justice Department lawyers gave their approval - would make getting 12 jurors to agree on a conviction difficult.
But the jury in the Baker's case didn't buy the "didn't know it was illegal" defense, convicting the deputy on three counts of civil rights and constitutional violations related to the waterboarding.
Bybee is now a federal judge on the Ninth Circuit Court of Appeals in San Francisco. Yoo is a constitutional law professor at the University of California, Berkeley and a visiting professor at Chapman University in Orange, California.
Bradbury, who was acting head of the Office of Legal Counsel for most of Bush's second term, reportedly has been looking for a job since Bush left office on January 20, 2009.