But the Bybee memo wasn't the start of BushGov's obsession with torture. As I've pointed out here, here and here - in early 2002, eight months prior to the Bybee memo request, then Attorney General Alberto Gonzales began the process to have terrorism detainees excluded from Geneva not because they didn't have valid status - Geneva applies to all prisons regardless of whether they are soldiers of a specific nation or not - but because Gonzales wished to avoid possible War Crimes prosecution of Adminstration Officials.
“We do not torture,” President Bush has said time and again. But Bush has approved techniques that are defined as torture under the Geneva Conventions. In fact, he abrogated U.S. compliance with Article 3 of the Conventions that specifically prohibits torture. Indeed, his then White House counsel and now attorney general Alberto Gonzales contemptuously referred to the Conventions as “quaint.”
In the infamous memo of August 1, 2002 written by the Justice Department’s Office of Legal Counsel, the so-called “Bybee memo,” after Jay Bybee, its director and since appointed by Bush to a federal judgeship, the Conventions were shoved aside and the definition revised. Rather than the Conventions stipulations against “cruel, inhumane and degrading” treatment of prisoners and “outrages upon personal dignity, in particular, humiliating and degrading treatment,” the administration adopted new standards: “Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The Bush administration’s new torture policy prompted the export of torture technique from Guantanamo to Abu Ghraib.
In recent weeks, Gonzales and Bush's attempts to end-run Geneva via Presidential decree have run upon rocky ground before the Supreme Court who flatly rejected the notion that Geneva did not apply. And if Geneva applies, so does the War Crimes Act of 1996. 18 USC § 2441
The debate has prompted former Chairman of the Joint Chiefs and Secretary of State Powell to submit a stern letter to the president, saying that President's position on this throws our moral basis for the war on terror "into doubt."
But why does Bush continue to insist on these methods when many of the professionals in the field, including the FBI argue that they simply don't work.
Blumenthal sees this insistence on "Hard Charging" techniques as part of a larger reshaping of the Presidency by Bush and his followers. A radical resurgence of the Imperial Presidency of Richard Nixon and even more. ("If the President does it, it's legal...") The use of warrantless wiretaps against American citizens, unlimited detention without judicial oversight, habeous corpus or due process, torture - even murder have all occured under this Presidents watch, and worse - at his direction.
The FBI forbids its agents from participating in any way in interrogation of detainees because of agents’ experience of what they considered torture. One agent in an email to bureau officials on August 2, 2004 described what he witnessed at the Guantanamo detainee prison camp: “On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more.” In one case, he said, “The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night.”
Bush claims are these methods that are “not torture” are necessary because they produce valuable intelligence on terrorism activities. Yet an FBI agent involved in the interrogations wrote on December 5, 2003, “These tactics have produced no intelligence of a threat neutralization nature to date and . . .”
The U.S. Army agrees emphatically. On September 6, the same day that Bush unveiled his new plan for torture and kangaroo courts, Lieutenant General John F. Kimmons, the Army’s Deputy Chief of Intelligence, in his presentation of the Army’s new field manual on interrogation that specifically encoded the Geneva Conventions rules against torture, said directly: “No good intelligence comes from abusive interrogation practices.”
16 Months Ago Amnesty International called for the investigation, and if neccesary arrest and prosecution of George W. Bush, Donald Rumsfeld and Alberto Gonzales for War Crimes. It's clear that with the paper trail that has been produced by the ACLU, any serious investigation of these issues would lead to grave consequences under 2441, including up to 5 years imprisonment and possible execution, for those who paved the way for these events to have occured. Even members of Congress if they approve the weakening and redefining of Geneva that the President has proposed.