“When the President does it, that means that it is not illegal.”

- Richard M. Nixon

The four “torture memos” released last week by the Obama Administration give the American people some enlightening insight into the machinations the Bush Administration took to subvert both U.S. and International Law. The memos, which were released with only minimal redaction, were issued by Jay Bybee and Steven Bradbury of the Whitehouse Office of Legal Council (OLC) during the Bush Administration.

In response to questions from the CIA, Bybee and Bradbury provided these memos to address the application of both the U.S. Legal Code and certain U.N. Conventions to the use of “certain techniques” in the interrogation of “high value al Qaeda detainees.” The ten techniques considered were

1. attention grasp
2. walling
3. facial hold
4. facial slap (insult slap)
5. cramped confinement
6. wall standing
7. stress positions
8. sleep deprivation
9. insects placed in a confinement box (with the prisoner)
10. the waterboard

The CIA asked the OLC to render an opinion on the legality of this set of interrogation techniques. When issuing the legal opinion, at bottom, the OLC had to determine whether the interrogation techniques “intentionally inflict severe physical or mental suffering” — the standard for determining a violation of the U.S. anti-torture statute.

There are both legal and factual components to the OLC’s opinions. The legal component consists of specifying what “severe suffering” means in order to determine whether or not the techniques violate either the U.S. torture statute or international law. It is important to note that most of the criticism of the torture memos focuses on this legal aspect—objecting that the staff of the OLC ratcheted the standard up to an absurdly high level by stating “extreme” interrogation techniques did not constitute torture unless they produced suffering equivalent to organ failure or death. This legal position was subsequently withdrawn by the OLC as faulty.

The factual component of the OLC’s opinions is just as important as the legal component. To render an opinion on the legality of the interrogation techniques, the OLC had to evaluate the consequences of the use of the ten techniques against the legal standard. To engage in this evaluation, the OLC had to first determine the extent of suffering that might be expected to be inflicted by the interrogation techniques.

Reading these memos, it becomes abundantly apparent the OLC relied almost entirely on the CIA’s own assurances about the extent of suffering the techniques would inflict. The memos are replete with phrases such as “based on the facts you have given us…,” “you have informed us that…” and “You have also reviewed the relevant literature and found no empirical data on the effect of these techniques, with the exception of sleep deprivation.” From the content of the memos, it is apparent the OLC did very little, if any, independent research into the effects of the techniques, choosing, instead, to rely almost solely on the information provided by the CIA. Since it was the CIA requesting permission to legally use the techniques, one has to ask just how unbiased the information the CIA provided the OLC might be.

The CIA wanted to apply these interrogation techniques to the al Qaeda prisoner Abu Zubaydah and, in fact, had already used them on other prisoners. So the CIA had powerful reasons to understate the actual suffering caused by these techniques. Had the CIA indicated the techniques inflict “severe suffering,” it would have been tantamount to an admission of prior criminal conduct. For this reason, no OLC lawyer conducting an independent legal analysis, even if sympathetic to the aims of the CIA, should have allowed his legal opinion to rest exclusively upon the claims of the CIA about the extent of suffering inflicted by the techniques.

Further, it was evident at the time the requested interrogation techniques might well constitute torture. After all, waterboarding has been counted as “torture” for centuries. Virtually everyone involved understood the CIA’s worry about criminal prosecution is what prompted the inquiry. It was obvious at the time that a legal opinion from the OLC concluding the interrogation techniques were “not illegal” would provide a strong defense for the interrogators and would allow such interrogations to continue.

Ultimately, as all parties knew, at stake was the question of whether the U.S. Department of Justice would assist intelligence agents engaged in illegal conduct by providing them a shield behind which they could hide. For these reasons, one would expect an OLC lawyer engaging in any legal analysis would make certain he had a solid factual basis for knowing how much suffering these interrogation techniques inflicted, unless the desired result of the analysis was politically motivated.

The memos explicitly acknowledge that “there is no evidence” at all about the combined effects of these interrogation techniques. Further, the OLC lawyers admit, “We don’t have any body of experience, beyond the CIA’s own experience with detainees, on which to base an answer to this question.” (10 March memo).

Following this admission, the only appropriate finding should have been that the OLC lacked a sufficient basis on which to sanction the legality of the interrogation techniques. Nevertheless, the OLC went ahead and issued an official legal opinion that “we do not believe that the use of the techniques in combination as you have described them would be expected to inflict ‘severe physical or mental pain or suffering’ within the meaning of the statute.”

This is a manifestly bad faith analysis because, as these statements make clear, the OLC lawyers had no independent factual basis for rendering their legal opinion. Rather, the OLC legal opinion is grounded entirely upon the self-severing assertions of individuals potentially subject to criminal liability.

This passage from the 10 March memo is particularly explicit:

“This possibility [that sleep deprivation reduces pain tolerance] suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you [CIA] have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ‘severe physical suffering’ within the meaning of sections 2340-2340A [of the U.S. Code].”

The OLC thus issued a legal opinion sanctioning the legality of these interrogation techniques based entirely upon a promise by the potential criminal suspects that they would not violate the law when using these techniques.

So, in the final analysis, we have a perfect example of circular reasoning — the CIA asks the OLC for an opinion about whether the interrogation techniques are legal, and the OLC concludes the techniques are “not illegal” by pointing to the assurances of the CIA that they inflict a level of suffering that falls short of the legal limits. It’s a perfectly empty circle.

This bad faith analysis runs through all four of the released torture memos. So, whether or not there is any legal uncertainty in the opinions issued by the OLC, there was no independent or reliable factual basis to support the legal opinion. Without such a factual basis, the legal opinion simply could not have been issued in good faith.