I am with the idea that Bybee “didn’t know about it at the time in 2002″. I also would be constrained to believe that, indeed, Bybee knew of the existence of Yoo’s July 2002 letter by the time he got around to answering Levin, but either (a) didn’t make the connection or (b) is playing some semantical games to put that letter outside the definition of “Written advice” (go find me a definition of that term – anywhere. It’s like defining “investment banking” – it includes or excludes whatever the person using the term wants.)

The third alterative is (c) he lied. In that regard, he’s waiting on getting the Scholzmann treatment for himself, which the spineless hacks in DoJ will surely give him, too. After all, he’s a federal judge! And, if we give Schloz a pass for some really blatant lies, we have to give him one for his subtle lies!

I’d like to concentrate not on the how or when but on the what. Yoo says in his July 13 “memo” to Rizzo: “Specific intent can be negated by a showing of good faith.” Now, you may all disagree with me, but I think, Yoo covered his ass, in this respect, when he wrote in the same “memo”:

Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, or did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions taken while relying on that advice would have be [sic] undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.

I made this point when writing about the AZ psych eval, re the “consulting with experts” aspect. But lately, I’ve been concentrating on the fact that there is a bulk of professional literature on the effects of SERE. It was conducted in its lead by a CIA researcher, and funded by the government. As one attorney wrote to me regarding the failure to use this information by the OLC, or contrariwise, to submit evidence of it by the CIA, constitutes partial evidence of criminal conspiracy, and certainly leaves the “good faith” aspect of the CIA’s intent in huge question.

The attorney wrote:

The failure to include these studies in the memos is also important because the memos were another tool to accomplish torture. The memos, you might remember, did cite studies on sleep deprivation i think but twisted the results to suit their purposes. The omission of key facts, such as the observations of torture and the medical data, is contrary to the role of OLC to be objective rather than advocating for a preassumed position. The memos should have included all the facts relevant to the questions presented and the case law, pro and con, and then discussed all the facts to reach an objective conclusion.

Now, this may be a monomaniacal preoccupation by myself, but I think not. By the way, no study of the long-term impact of these SERE techniques has ever been (publicly) made, but given that much of this research was done under the auspices of studying the effects of PTSD, a chronic, severe, long-term psychiatric illness, not to mention the severity of the effects as multiply reported, speaks to the severe, long-term harm of the SERE techniques. Asking Ogrisseg to speak as to his experience with SERE, or any other SERE interrogator/trainer, does not qualify as expert opinion, as the information is coming from the same source that is advocating the techniques, and is not peer-reviewed.

OK, one more time on what I consider to be an important finding. Consider this abstract (summary) for an article on stress, which included the participation of a CIA researcher, and was funded, at least in part, by government or military funds.

The peer reviewed article considers the effects of Hormone profiles in humans experiencing military survival training, May 2000 (bold emphases added).

BACKGROUND: Clinical models of the human response to intense, acute stress have been limited to laboratory settings or cross sectional characterizations. As a result, data about the sensitivity of the human neuroendocrine activation to realistic stressors of varying magnitudes are limited. The U.S. Army survival course offers a unique opportunity to examine, in a controlled manner, the human response to acute, realistic, military stress. METHODS: Salivary data were collected in 109 subjects at baseline during four stress exposure time points and at recovery. Serum data was collected at baseline and recovery in 72 subjects and at baseline and during stress exposure in a subgroup of subjects (n = 21). RESULTS: Cortisol significantly increased during the captivity experience and was greatest after subjects’ exposure to interrogations. Cortisol remained significantly elevated at recovery. Testosterone was significantly reduced within 12 hours of captivity. Reductions of both total and free T4 and of total and free T3 were observed, as were increases in thyrotropin. CONCLUSIONS: The stress of military survival training produced dramatic alterations in cortisol, percent free cortisol, testosterone, and thyroid indices. Different types of stressors had varying effects on the neuroendocrine indices. The degree of neuroendocrine changes observed may have significant implications for subsequent responses to stress.

“Significant implications for subsequent responses to stress.” Remember these words. While these results are not remarkable within the studies done within the field, they are important for these reasons: 1) they were drawn upon exposure to SERE stress (and these by voluntary subjects who were aware of the limited nature of the exercise), 2) the data was funded in part by the U.S. Army, 3) one of the lead researchers has a CIA affiliation, indicating that the information from this study was available to both the military (especially Special Forces/Operations personnel, who were big backers of Dr. Morgan’s research) and the CIA, 4) the drafters of the OLC memos were either incompetent in gathering the requisite data on the harm done by the proposed interrogation techniques, or the information was suppressed somehow, and finally 4) the data satisfies the need for predicate act in the use of these techniques upon prisoners, per the torture statute, and I don’t mean only waterboarding, which was not included in the stressors to which the subjects were exposed.

I don’t know how much clearer one can make this. I don’t think these revelations are necessary in making the case against the OLC memos, or the actions of the CIA — not by a long stretch — however they do make the case much easier and have the benefit of pointing a possible direction towards the individuals within the military and intelligence agencies that actually drew up the torture protocols, and discovering what types of experimentation they were doing upon the torture victims.

By the way, the above results were considered an underestimate by the authors, since the subjects were often special forces personnel, and self-selected for resilience to stress. The authors also note in the text the long-term nature of physiological changes associated to stress, though they themselves did not study that.

And to LabDancer @35 above, I believe predicate acts are precisely those acts that make, by statue definition, a crime a crime.