How John Yoo and His Young Apprentice Tortured Health Care

Last Sunday, Nancy Pelosi vowed to wrangle up the votes needed to pass a health care bill even if it meant some Democratic lawmakers would be voted out of office in November’s midterm elections.

“Why are we here? We’re not here just to self-perpetuate our service in Congress. We’re here to do the job for the American people,” Pelosi said in an interview on ABC News’ “This Week.“

“The point is we have a responsibility here … ” Pelosi said later on CNN’s “State of the Union,” explaining the urgency in passing legislation.

If only those words and that aggressive attitude applied to holding Bush administration officials accountable for implementing a policy of torture after 9/11 against “war on terror” detainees.

While it may seem like a stretch to talk about health care and torture in the same breath, there is a direct link between the two issues. Indeed, it was a Medicare benefits statute and other health care provisions that were used to form the basis for one of two August 2002 torture memos.

A voluminous report released two weeks ago by the Justice Department’s ethics watchdog, the Office of Professional Responsibility (OPR), revealed in great detail how, in early 2002 after discussing “enhanced interrogation techniques” during numerous meetings with CIA, the National Security Council, then White House Counsel Alberto Gonzales and former Vice President Dick Cheney’s attorney, David Addington, Office of Legal Counsel (OLC) attorney John Yoo and a 28-year-old attorney named Jennifer Koester, who was just two years out of law school, started work on a legal memo that would redefine the federal torture statute’s definition of severe pain.

Under 18 USC Section 2340, torture is “an act committed by a person acting under the color 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 or physical control.” Section 2340a makes it makes it a criminal offense for any person “outside the United States [to] commit or attempt to commit torture.”

But Yoo wanted to know what Congress really meant by “severe.” He looked up the definition of the word in a dictionary and included it in the draft memo he was working on, “suggesting that the degree of pain must be intense and difficult to endure,” according to the final version of the OPR report.

In comments Yoo made May 23, 2002, on one of the drafts of the torture memo, he “responded to the … definition of ‘severe’ by asking REDACTED [likely Koester as her name appears unredacted in an earlier version of the OPR report] whether ‘severe’ is used in this way in other parts of the US Code?”

This is one of the results that popped up during a search:

“The term ’emergency medical condition’ means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in – (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.”

That was taken directly from the Medicare+Choice Benefits and Beneficiary Protections statute. It ended up appearing in the final version of Yoo’s torture memo formally prepared for Gonzales and known as “Standards of Conduct for Interrogation.” Yoo’s boss, Jay Bybee, signed it.

Koester found other uses of “severe pain” in additionl health care statutes. Yoo concluded this is what Congress meant by severe pain when it adopted the anti-torture statute: pain that rose to the level of intensity equal to organ failure or death.

In another draft of the torture memo dated June 26, 2002, REDACTED [again, likely Koester] “cited several essentially identical health care benefits statutes, which listed symptoms that would lead a reasonable person to conclude that someone was suffering from an ’emergency medical condition,'” the report stated. “The term ‘severe pain’ was not defined in the health care statutes, but was listed as a possible indicator that a person was experiencing an emergency medical condition.

“That draft included the statement that these health care benefits statutes ‘suggest that ‘severe pain,’ as used in [the torture statute] must rise to … the level that indicates that death, organ failure, or serious impairment of body functions will reasonably result … This proposition was summarized in the conclusion section of the [Yoo’s] draft [torture memo] as follows:

“Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it is likely to be accompanied by serious physical injury, such as damage to one’s organ’s or broken bones.”

But as the OPR report noted, the “benefits statutes do not define or even describe ‘severe pain.'”

“They simply cite severe pain as one of an unspecified number of symptoms that would lead a prudent layperson to believe that serious health consequences are likely to result from a failure to provide immediate medical attention,” the report said.

To support his interpretation of Congress’s definition of severe pain, Yoo cited a 1991 Supreme Court case, West Virginia University Hospitals, Inc. v. Casey, and quoted a section of the opinion written by Justice Antonin Scalia discussing ambiguous statutory terms, which happened to be the only legal authority Yoo cited in his memo that justified the use of the medical benefits statute:

“[W]e construe a [statutory term] to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law.”

But the OPR report noted that Yoo omitted an introductory phrase to the section of the High Court’s opinion that said, “Where a statutory term presented to us for the first time is ambiguous, we construe … “

Yoo “should have demonstrated that the term ‘severe pain’ was ambiguous before turning to other statutory sources,” the OPR report said, adding that “borrowing from an unrelated statute … is a relatively weak aid given that Congress may well have intended the same word to have a different meaning in different statutes.”

This is just one of the many examples the OPR cited to demonstrate how Yoo and Bybee fixed the law around the Bush administration’s torture policy.

The health care language Yoo twisted redefining severe pain was included, nearly verbatim, in one of the August 2002 torture memos that cleared the way for CIA interrogators to brutalize high-level detainees by subjecting them to nearly a dozen horrific torture techniques without fear of violating the anti-torture statute because, as the torture memo noted, they did not “specifically intend” to harm prisoners.

Nor would the approved methods, such as waterboarding, sleep deprivation and wall slamming, rise to an intense level of pain associated with “death, organ failure, or serious impairment of body functions” be considered torture, according to Yoo.

How and why the health benefits statute was used was one of the first questions OPR investigators raised during their four-year long probe of the legal work Yoo and former OLC attorney Bybee conducted for the Bush administration on torture.

Scott Horton, a constitutional lawyer and contributing editor to Harper’s, who has written extensively on the Bush administration’s torture policies, said in an email interview, “just about everyone I know who has examined the [torture] memo believes that Yoo’s use of the medical triage provisions was absurd.”

“Yoo also routinely criticizes the Congress for not writing ‘clearly,'” Horton added. “But in fact it gave clear guidance – it just wasn’t the guidance Yoo wanted, which is why he interprets their restrictions into oblivion.”

In his 2006 book, “War By Other Means,” Yoo wrote that when Congress passed the anti-torture law they only prohibited “severe physical or mental pain or suffering.”

“The ban on torture does not prohibit any pain or suffering whether physical or mental, only severe acts. Congress did not define severe … OLC interpreted ‘severe’ as a level of pain ‘equivalent in intensity to the pain accompanying serious physical injury, such as death, organ failure, or serious impairment of body functions,” Yoo wrote.

“OLC’s first 2002 definition did not make up this definition out of thin air. It applied a standard technique used to interpret ambiguous phrases in law. When Congress does not define its terms, courts commonly look in the United States Code for the use of similar language. The only other place where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.'”

When Yoo’s torture memo leaked in 2004, it contained a lengthy explanation as to why the health care statutes were relied upon to redefine the anti-torture statute’s severe pain definition. The memo was prepared for Gonzales and Bybee is identified as the author.

“Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain,” Yoo’s memo, signed by Bybee, stated. “They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture ‘severe pain’ must rise to a similarly high level – the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.”

The OPR report noted, “the medical benefits statutes in question do not associate severe pain with ‘death,’ ‘organ failure,’ or ‘permanent damage.'”

“The language used by Congress was ‘serious jeopardy,’ ‘serious impairment of bodily functions,’ and ‘serious dysfunction of any bodily organ or part,” the report said.

OPR investigators questioned Yoo as to why he changed the statute’s words. Yoo said that’s not what he was trying to do. He was simply paraphrasing. But the words Yoo chose to paraphrase the medical benefits statute “heighten[ed] the severity of the listed consequences.”

For example, the phrase “serious jeopardy” in the medical benefits statute became “death,” “serious dysfunction of any bodily organ” was reinterpreted by Yoo as “organ failure,” and “serious impairment of bodily functions” became “permanent damage.”

The OPR report said Yoo was asked to describe the “pain of death.” “Well, I think I assume that’s very painful, but I don’t know,” Yoo told the OPR.

Despite Yoo’s denials that he wasn’t rewriting the medical benefits statutes, the OPR concluded that the reason Yoo and Bybee changed the language was “to add further support to their ‘aggressive’ interpretation of the torture statute.”

Yoo’s use of these health benefits statutes to define severe pain was widely condemned inside the Justice Department and by outside legal scholars as “illogical or irrelevant,” and ethics investigators concluded that the “reasoning underlying this legal conclusion” was also “illogical and unsupported by conventional legal analysis.”

Daniel Levin, the OLC’s former acting assistant attorney general, said the use of the medical benefits statutes to define severe pain “just didn’t make sense.” Jack Goldsmith, who took over as head of OLC after Bybee was appointed to the Ninth Circuit Court of Appeals, said, Yoo’s “clumsily definitional arbitrage” of “severe pain” as contained in the health benefits statutes “didn’t even seem in the ballpark.”

The OPR said the “Standards” memo could be “interpreted as advising interrogators that they may legally inflict pain up to the point of organ failure, death, or serious physical injury.” Yoo and Bybee vigorously defended the use of the medical benefits statutes in interviews with OPR investigators and lengthy responses to the report’s findings.

Bybee said “no rational interrogator” could interpret the memo as “advising that he could ‘legally inflict'” that amount of pain. Yoo said the advice contained in the memo he drafted was “written to guide a very small and quite sophisticated legal audience, not for any interrogators in the field.”

But the OPR was unconvinced by Yoo’s and Bybee’s rationale.

“The fact that the medical benefits statutes were neither related, similar, nor analogous to the torture statute, coupled with the fact that they did not in fact define, explain or interpret the meaning of ‘severe pain,’ undermined their utility in interpreting the torture statute and led us to conclude that … reliance on those statutes was unreasonable,” the report said. “The occurrence of the phrase ‘severe pain’ in the medical benefits statutes provided little or no support for the conclusion that ‘severe pain’ in the torture statute must rise to the level of pain associated with ‘death, organ failure, or serious impairment of body functions.'”

OPR concluded that the torture memos Yoo and Bybee prepared “did not represent independent professional judgment or candid legal advice,” but were drafted to provide the Bush administration with the legal means to torture war on terror detainees. Moreover, Yoo and Bybee were well aware that the Bush administration wanted to pursue a policy of torture and “tailored their research” and “drafted memoranda to support that result.”

The OPR said the misuse of the medical benefits statutes alone was a “professional misconduct” violation and, along with Yoo’s and Bybee’s other legal failings, warranted a referral to their states’ bar associations where they could have faced disciplinary action that included the revocation of their law licenses.

However, David Margolis, a longtime Justice Department prosecutor who reviewed the final version of the OPR’s report, changed the misconduct finding to that of “poor judgment,” which means the agency will not make such a referral.

Yet, Margolis agreed with the final report’s conclusions that the use of the medical benefits statute in Yoo’s “Standards” memo was “confusing.”

While Margolis declined to refer Yoo and Bybee to their states’ bars, Congressman Jerrold Nadler (D-New York) sent letters February 26 to Paul J. Killion, the chief disciplinary counsel with the Disciplinary Board of the Supreme Court of Pennsylvania, asking that he “consider and determine whether, consistent with applicable laws, rules and procedures, further investigation or possible disciplinary proceedings are warranted in connection with” the legal advice Yoo provided to the Bush White House.

Nadler, who chairs a House Judiciary subcommittee, also sent an identical letter to Wallace E. Shipp Jr. at the Office of the Bar Counsel in Washington, DC, requesting an investigation of Bybee.

Though many legal scholars have doubted that state bar officials would conduct a further review of Yoo and Bybee’s legal work, Horton said they will in fact “look very closely at what the OPR said because the OPR consists of ethics experts.”

“It’s unclear that they will really care that much about what David Margolis said or thought – although he was the final authority for the Justice Department, he is not, in fact, an expert of any sort on ethics matters – and most legal ethicists looking at his memo consider it to be something of an embarrassment,” Horton said. Margolis’ “memo will be examined and considered as a political judgment, I think.”

“As for Nadler, he has done little more than refer the matter, which I don’t think will of itself carry much weight,” Horton added. “Still, if we look at other cases, the state bars have developed a clear pattern of not looking into cases involving DOJ lawyers unless and until they are referred. Then they make up their own minds.”