The earliest of the torture memos released by the Obama administration was one signed by Jay Bybee on Aug. 1,2002, responding to John Rizzo, acting General Counsel of the CIA, who inquired whether proposed interrogation techniques to be used on Abu Zubaydah would violate the prohibition on torture found at Section 2340 of title 18 of the United States Code.
Section 2340A makes it a criminal offense for any person "outside of the United States to commit or attempt to commit torture." Torture is defined as; "an act committed by a person under the cover of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody of physical control."
Bybee was clearly conflicted by the use of waterboarding, outright stating that "We find that the use of the waterboard a threat of imminent death," and yet he went on to justify its use.
The first thing that strikes you when you read the memo is the attempt to avoid describing any of the proposed techniques as inflicting "severe physical or mental pain." The facial slap, walling, cramped confinement, stressed positions, and sleep deprivation are all described within such limited applications that they avoid the opprobrium of severe physical or mental pain.
However, when it came to waterboarding, Bybee could not easily avoid the issue. His description of waterboarding leaves no room for doubt.
We find that the use of the waterboard constitutes a threat of imminent death. As you have explained the waterboard procedure to us, it creates in the subject the uncontrollable physiological sensation that the subject is drownig. Although the procedure will be monitored by personnel with medical training and extensive SERE school experience with this procedure who will ensure the subject's mental and physical safety, the subject is not aware of any of these precautions. From the vantage point of any reasonable person undergoing this procedure due to the uncontrollable physiological sensation he is experiencing. Thus, this procedure cannot be viewed as too uncertain to satisfy the imminence requirement. Accordingly, it constitutes a threat of imminent death and fulfills the predicate act requirement under the statute.
In order to justify waterboarding, Bybee must find a way to argue that the threat of imminent death does not constitute "severe mental or physical pain," and he does so by resorting to language not mentioned in the statute--that "prolonged mental harm must nonetheless result to violate the the statutory prohibition on infliction of severe mental pain or suffering." Bybee blindly accepts the assertion that SERE school attendees showed no prolonged mental harm, even though nearly 5% of those undergoing waterboarding required psychological counseling afterward.
Furthermore, Bybee concludes that to violate the statute, "an individual must have the specefic intent to inflict severe pain or suffering." Mere "good faith belief" by an interrogator that he is not causing severe pain or suffering is enough to free him from responsibility, even though, as Bybee writes, "an honest belief need not be reasonable."
Bybee has constructed such huge loopholes in the law that, had the thousands of Japanese and Germans charged with war crimes after WWII been able to use them, most would have walked free.
One might question if Bybee's conclusions were guided by a "good faith belief" or by political pressure. Unfortunately such states of mind are impossible to prove.