Torture Memos

The Torture Memos, sometimes called the Bybee Memo or 8/1/02 Interrogation Opinion, were a set of legal memoranda drafted by Deputy Assistant Attorney General of the United States John Yoo and signed by Assistant Attorney General Jay Bybee. They advised the Central Intelligence Agency, the United States Department of Defense, and the President on the use of mental and physical torment and coercion such as prolonged sleep deprivation, binding in "stress positions," and waterboarding, and stated that acts widely regarded as torture might be legally permissible under an expansive interpretation of Presidential authority during the "War on Terror." These memoranda have been the focus of considerable controversy, and were repudiated by President Barack Obama in early 2009.

The Torture Memos
The "torture memos" include three documents entitled, "Standards of Conduct for Interrogation under 18 U.S.C. sections 2340-2340A," "Interrogation of al Qaeda" (both drafted by Jay Bybee), and an untitled letter from John Yoo to Alberto Gonzales.

Standards of Conduct for Interrogation under 18 U.S.C. sections 2340-2340A
Jay Bybee, then Assistant Attorney General of the United States of America, addressed a memorandum to Alberto Gonzales, then Counsel to the President, dated August 1, 2002, entitled “Standards for Conduct for Interrogation under 18 U.S.C. 2340-2340A,” in response to the President’s reported request for legal opinion on the U.N. Convention Against Torture and 18 U.S.C. section 2340 and the interrogation of al Qaeda operatives. This is the primary “torture memo,” which defines the Department of Justice’s interpretation of torture, and is relied upon heavily by the subsequent “torture memos.” It discusses the language of the torture statute (18 U.S.C. sections 2340-2340A) in great detail in order to derive its definition of torture, states that “cruel, inhuman, or degrading” treatment is not torture according to that statute, and examines “possible defenses that would negate any claim that certain interrogation methods violate the statute.”  It concludes that torture is only extreme acts according to the Convention Against Torture, that severe pain (a requisite for his definition of torture) is “serious physical injury, such as organ failure, impairment of bodily function, or even death,” that prolonged mental harm is harm that must last for “months or even years,” that “prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war,” and that “under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.”

Part I
Part one, in which the text and history of the U.S. torture statute (18 U.S.C. 2340-2340A) is examined, mainly addresses Bybee's interpretation of the definition of torture, including the definition of severe physical and mental pain or suffering.

In the first section, the memorandum reminds the reader that the statute requires specific intent (the convention only requires general intent, but the specific intent language is found in the U.S. ratification reservation), and in citing case law precedent states that specific intent means that "the infliction of [severe] pain must be the defendant's precise objective" and reminds the reader that general intent only requires intent of the actions which would be reasonably likely to result in a violation of the statute. The article then concludes that, "even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent," but makes no attempt to explain how one can act knowing that a result is certain without intending the outcome, and instead claims that a jury would likely act contrary to law (out of misunderstanding) by finding such an individual guilty regardless.

The second section is key to the definition given by this memo of torture, yet provides the least precedent or legal reasoning of the memo sections. The memo admits difficulty in finding and clear definition for the "severe pain or suffering" required by the torture statute (which is also required by the convention). After examining the definition provided in various dictionaries, it concludes that "pain" is synonymous with "suffering" ("it is difficult to conceive of such suffering that would not involve severe physical pain"), and it selects among the many definitions and proposes that severe pain must be difficult to endure (some definitions quoted in the memo define severe pain as "inflicting discomfort"). In searching for a reference to the term in other U.S. statutes and law, it quotes from a health care law which defines "emergency condition," but merely mentions "severe pain" in passing. That statutory subsection, 8 U.S.C. section 1395w-22(d)(3)(B), defines an emergency condition as a condition "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that [one]... could reasonably expect the absence of immediate medical attention to result in placing the health of the individual... in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part." The memorandum then concludes that severe pain necessarily be pain associated with "death, organ failure, or serious impairment of body functions," and does not explain the possibility left open in that statute of severe pain existing without the existence of those characteristics (and vice-versa), or the fact that the statute only loosely associates the concepts with "severe pain" as opposed to defining the term. Furthermore, even though this section spends considerable effort interpreting such terms as "or," it totally ignores parenthetical language directly relevant to the meaning of "severe pain," which states, "severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions)." The memo then consumes copious space to find the most strict definition of mental pain and prolonged mental harm, which is nonetheless already defined by the statute. It concludes that "prolonged" must be a duration of months or even years. It also erroneously states that the statute requires long-term mental harm to accompany mental or physical pain.

Part II
The memo then discusses the Convention Against Torture (which the memo calls the "Torture Convention") and concludes that the convention makes a distinction between torture and "cruel, inhuman, or degrading treatment or punishment," and that therefore torture is "only the most extreme acts," which the memo concludes, together with the ratifying reservations of the United States, confirms the interpretation of torture found in part one. It concludes that torture does not include "other acts of cruel, in human or degrading treatment or punishment" because such language is found in a different article than the definition of torture, and because it appears that the convention does not intend to criminalize such action, but instead discourage it. The memo then examines the ratification history, and cites U.S. case law which states that the executive branch's interpretation of the treaty "is to be accorded the greatest weight in ascertaining a treaty's intent and meaning." It finds in the congressional record that the Reagan administration understood torture to be "at the extreme end of cruel, inhuman and degrading treatment or punishment," and that such treatment or punishment which is not torture be "the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States." However, the memo fails to point out that since the Reagan administration was no longer in power at the time of ratification, the understanding of the H.W. Bush administration was controlling in interpreting the meaning of the reservation which was filed with ratification. That understanding was different than that of the Reagan administration in that it failed to promote any language regarding torture to be only "extremely cruel" behavior resulting in "excruciating and agonizing" pain, and instead the reservation that was filed merely quoted the text of the U.S. torture statute. Instead, the memorandum states that, on the basis of its own novel and tenuous conclusions reached in part one of the memorandum, "there was little difference between these two understandings and... the further definition of mental pain or suffering merely sought remove [sic] the vagueness created by concept of "agonizing and excruciating" mental pain." The memo quotes a legal adviser of the Department of State, who stated that, "no higher standard was intended by the Reagan administration understanding than was present in the Convention or the Bush understanding" as evidence for the memo's interpretation, which however minimizes the impact of the terms "excruciating and agonizing" and "extremely cruel" in an unusual manner, rather than state (as the memo proposes) that H.W. Bush intended "severe pain" to have the same meaning as is normally associated with the terms used by Reagan. The memo then examines the negotiating history of the convention, and finds that the U.S. originally proposed the terms "extremely severe pain or suffering," and that the U.K. proposed the terms, "extreme pain or suffering rather than... severe pain or suffering," (but doesn't mention the proposals of any other countries), and states that "[u]ltimately, in choosing the phrase "severe pain," the parties concluded that this phrase "sufficient[ly]... convey[ed] the idea that only acts of a certain gravity shall... constitute torture," rather than all acts that are inhumane and degrading. The memorandum however passingly reads into these statements a meaning of "severe pain," being synonymous with "extreme pain," but gives no reason for such an interpretation.  It concludes that the "ratification history and negotiating history [of the convention] all confirm that Section 2340A reaches only the most heinous acts," and thus implies that this confirms its definition of torture in part one, section two of this memo.

Part III
Part three summarizes various case law to outline the kind of conduct which the courts have previously found to be torture. The memo states that through an analysis of those cases, "that courts are likely to take a totality-of-the-circumstances approach, and will look to an entire course of conduct, to determine whether certain acts will violate Section 2340A." After reviewing a number of torture-related cases in the U.S., in which victims were subjected to beatings, burning, electric shocks, and the threat of such actions, it states that, "we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate the law." It does discuss one case in which the federal court states that an isolated incident, such as a single blow to the stomach, is sufficient alone to be torture, but the memo states that this is in error, because "a single blow does not reach the requisite level of severity [to constitute torture]," and later explains that this conclusion is "based on our interpretation of the criminal statute" found in section two of part one of this memo. Although the memo states that no where in the case law can a clear interpretation or definition of torture be found, because the cases it did find were all regarding extreme acts, it concludes that this confirms the memo's definition of torture.

Part IV
Part four examines international case law regarding torture, and concludes that while there are many methods that might be cruel, inhuman and degrading treatment, "they do not produce pain or suffering of the necessary intensity to meet the definition of torture." It discusses a case in the European Court of Human Rights that found that wall standing, hooding, subjection to noise, sleep deprivation, and deprivation of food and drink, used in combination for a long period fall into the category of inhuman treatment, but not torture, since "they did not occasion suffering of the particular intensity and cruelty implied by the word torture." It also discusses a case from the Israel Supreme Court that does not mention torture at all, but only cruel and inhumane treatment, which the memo curiously states is evidence that the actions addressed by that court were not torture. While there are a host of other international cases regarding torture, those two were the only ones addressed by the memo.

Part V
Part five of the memo analysis constitutional law as to whether the statute passed by congress infringes on the powers of the president to conduct war, and concludes that it is unconstitutional. It states specifically that the nation was "in the middle of a war in which the nation [had] already suffered a direct attack," and that interrogations would encroach on the president's ability to prevent future attacks. The memo summarizes the terrorist threat from al Qaeda, including the September 11th attacks, and states that interrogation of al Qaeda operatives allegedly lead to the stopping of Jose' Padilla's planned attack. It provides case law which supports its position of the executive branch to conduct war, but it does not discuss how positions previously taken by the Department of Justice regarding obligations under the Geneva Conventions impact this topic. It also discusses how any prosecution of individuals following orders from the President, even if in violation of Section 2340A, should not be possible, since it would impinge upon the president's powers as commander-in-chief.

Part VI
Part six of the memo is entitled "Defenses" and concludes that "under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A." However, this is provided as merely a fail safe argument, because the memorandum feels secure that, according to its view part five of the memo, prosecution would probably be impossible.

Conclusion
In the conclusion section of the memorandum, Bybee summarizes what is viewed as the most important conclusions of the memorandum, namely the definition of torture, the possible unconstitutionality of the torture statute as applied to the president, and the legal justification of necessity or self-defense for any acts which might be torture.

Interrogation of al Qaeda operative
Jay Bybee addressed a memorandum to John Rizzo, then the Acting General Counsel of the CIA, dated August 1, 2002, in response to the CIA’s reported request for legal opinion on 18 U.S.C. section 2340 (the torture statute) as applied to the interrogation of Abu Zubaydah. There was much opposition to releasing this memorandum to the public, and the first release was almost completely excised. It summarizes the facts regarding Abu Zubaydah and his resistance to interrogation, as related by the CIA. It summarizes the various methods of physical and psychological coercion to be used by the CIA against Zubaydah, including attention grasp, walling, facial hold, insult slap, cramped confinement (large and small and with and without an insect), wall standing, stress positions, sleep deprivation, and waterboarding. It discusses the background of Zubaydah and the possible mental effects from such abuse, the background of the consultant to be assisting, the details of the proposed coercive actions, and applies the U.S. torture statute (18 U.S.C. section 2340-2340A) to each of these proposed actions. It concludes that none of these methods, individually or simultaneously for any duration, would be considered torture according to law.

Part I
The first part reminds the reader that the advice provided in this memorandum applies only to the facts at hand, regarding Abu Zubaydah, and that the conclusions of the memorandum may change given different facts. Those facts, according to the top secret memorandum, are that Abu Zubaydah was being held by the United States, and that, "[t]he interrogation team is certain that he has additional information that he refuses to divulge" regarding terrorist groups in the U.S. or Saudi Arabia planning attacks in the U.S. or overseas, but does not give any specifics and does not mention what makes this conclusion certain. The memorandum states that it appears that the suspect has grown accustomed to their interrogation techniques, and makes vague reference to unspecific evidence of a possible attack in the United States by unknown individuals. Nonetheless, without further discussion the fact summary concludes that the "high level of threat [the reader] believe[s] now exists" is the reason why advice regarding further techniques is being sought. Continuing to summarize the fact, the memorandum then summarizes the characteristics of the professionals present during the proposed interrogation techniques, and summarizes those coercive methods. It states that the purpose of these methods will be to, "convince Zubaydah that the only way he can influence his surrounding environment is through cooperation." It is then that the memorandum describes in detail each of the techniques proposed as generally used, including attention grasp, walling, facial hold, insult slap, cramped confinement (large and small and with and without an insect), wall standing, stress positions, sleep deprivation, and waterboarding. It clarifies that a medical expert will always be present "to prevent severe physical or mental harm[.]"

Part II
Part two of this memorandum goes into great detail how the techniques described in part one will be applied in Abu Zubaydah's particular case, and spends considerable space describing to the C.I.A. in great detail their own practices, and reminds them how those practices are applied in such a way "to ensure that no prolonged mental harm would result from the use of these proposed procedures." This section reviews how no appreciable harm has ever resulted in the application of these techniques on U.S. military personnel, and that these techniques have the approval of the government medical experts who train in the application and subversion of these techniques. It also summarizes the psychological profile provided of the subject, including his involvement in high-level terrorist activities with al Qaeda and his background training operatives in interrogation resistance techniques, as well as his radical thinking, such as the fact that he "has stated during interviews that he thinks of any activity outside of jihad as "silly"." It also states that after substantial research of the individual's background, behavior and journal entries that he does not appear to suffer from any psychological disorders or disturbances. This section concludes by emphasizing the suspicion of the potential value of the information he could provide, as well as his likely strong ability to resist standard interrogation techniques.

Part III
This section provides legal analysis of the U.S. anti-torture law (18 U.S.C. section 2340-2340A) and the application of each of the proposed techniques in this particular situation. After summarizing the law, it analyses the elements of the offense of torture (inflicting severe pain or suffering), and the specific (or criminal) intent required by the statute for the offense.

Letter from John Yoo to Alberto Gonzales
John Yoo, then Deputy Assistant Attorney General, addressed a memorandum to Alberto Gonzales, then the Counsel to the President, dated August 1, 2002, in response to Gonzales' reported request for legal opinion on whether interrogation methods used on al Qaeda operatives would be in violation of the U.N. Convention Against Torture, and whether such actions could be the basis for prosecution in the International Criminal Court. The letter is intended to supplement the memorandum sent to Gonzales the same day by Jay Bybee, to which it occasionally refers. The letter concludes that the interpretation of the Department of Justice of 18 U.S.C. s. 2340, which enacted into U.S. law the Convention Against Torture, does not conflict with the Convention Against Torture because of the reservations of the United States recorded upon ratification. It also concludes that "actions taken as part of the interrogation... cannot fall within the jurisdiction of the ICC, although it would be impossible to control the actions of a rogue prosecutor or judge." The letter in its analysis then explains the Department of Justice's interpretation of s. 2340-2340A, their interpretation of the Convention Against Torture as applied to the United States and the status of the U.S. reservations, and explains its position on the possibility of prosecution by the ICC.

Part I
In the explanation of the definition of torture according to 18 U.S.C. section 2340 it emphasizes the need for the pain to be severe, although it does not attempt to define what "severe pain or suffering" means. It also emphasizes that the individual inflicting such pain must have "specific intention to inflict severe pain or suffering." The letter then explains section 2340's definition of "severe mental pain or suffering," and reminds the reader of the need for "prolonged mental harm."

Part II
As the memo quotes from the definition of torture in the Convention Against Torture, it compares that definition with the one found in the U.S. statute, and analyses the effect of the ratification reservation of the U.S. to the convention. That reservation was mainly regarding article one of the convention, which defines torture, but it also states that the U.S. refuses to accept jurisdiction of the International Court of Justice regarding conformity to the convention. It points out that in the reservation, the language of specific intent was added (as opposed to the general intent in the convention), and it further explained what was meant by mental pain or suffering (as it appears in the U.S. statute). Commenting on the specificity of the reservation and statute regarding mental pain or suffering, it comments that, “this understanding ensured that mental torture would rise to a severity comparable to that required in the context of physical torture.” The memo explains treaty law which states that the U.S. is only bound to the treaty as modified by the reservation, and points out that the language of the reservation is “nearly identical” to that of 18 U.S.C. s. 2340. Therefore, it states, if the interrogation conduct did not violate the U.S. statute, it would also not violate the U.S. obligations under the convention. However, even though the letter stated that there was little substantive difference between the definition of torture in the text of the statute (or reservation) and in the convention, most of the material in this part of the memo is dedicated to explaining why the reservation to the convention is valid and cannot be over-turned. The memo closes this section reminding the reader of the refusal of the U.S. to accept the jurisdiction, and that, “[a]lthough the Convention creates a [c]ommittee to monitor compliance, [the committee] can only conduct studies and has no enforcement powers.”

Part III
In discussing the possible prosecution by the ICC, the memo states that the U.S. did not ratify the necessary treaty for such jurisdiction (the Rome Statute), and that even if the ICC were to claim jurisdiction over the matter, “interrogation of an al Qaeda operative could not constitute a crime under the Rome Statute,” since it would not involve the “widespread and systematic attack directed against any civilian population,” and it would not be a war crime. Yoo clarifies that, in his opinion, “[t]he United States’ campaign against al Qaeda is an attack on a non-state terrorist organization, not a civilian population.” He also reiterates President W. Bush’s assertion that “neither members of the al Qaeda terrorist network nor Taliban soldiers were entitled to the legal status of prisoners of war under the [Geneva Convention],” and therefore planned interrogation methods would not constitute a violation of the Geneva Convention, or war crime. Such an interpretation of the Geneva Convention was according to the interpretation insisted upon by Yoo and the Department of Justice in memos written to the President and Department of Defense (despite objections by the Department of State) on January 9, 2002, January 22, 2002,  February 1, 2002 and again on February 7, 2002.

Conclusion
Yoo concludes the letter by stating, “It is possible that an ICC official would ignore the clear limitations imposed by the Rome Statute, or at least disagree with the President’s interpretation of [the Geneva Convention]. Of course, the problem of the “rogue prosecutor” is not limited to questions about the interrogation of al Qaeda operatives, but is a potential risk for any number of actions that have been undertaken during the Afghanistan compaign… We cannot predict the political actions of international institutions.”

OLC head Jack Goldsmith's withdrawal of the torture memos
After Bybee resigned from the Department of Justice in the Fall of 2003 for a federal judgeship in Nevada, and Attorney General Ashcroft vetoed the White House's choice of  John Yoo as his successor, the attorney who succeeded Bybee as head of the Office of Legal Council was Jack Goldsmith. He reviewed the Torture Memos and concluded that they were legally defective and had to be withdrawn. In his book The Terror Presidency,  Goldsmith called them "cursory and one-sided legal arguments." Goldsmith says he made the decision to revoke what the CIA had been calling its "golden shield" against prosecution six months before the abuses at Abu Ghraib were revealed, and was at work on the problem when the scandal precipitated the final decision. When he brought his decision to White House Council Alberto Gonzales and Vice Presidential Council David Addington Goldsmith reports, Gonzales seemed "puzzled and slightly worried," while Addington "was just plain mad." Reflecting afterward on the Torture Memos as a cautionary tale, Goldsmith writes:

""How could this have happened? How could OLC have written opinions that, when revealed to the world weeks after the Abu Ghraib scandal broke, made it seem as though the administration was giving official sanction to torture, and brought such dishonor on the United States, the Bush administration, the Department of Justice, and the CIA? How could its opinions reflect such bad judgement, be so poorly reasoned, and have such terrible tone?... The main explanation is fear [of a new attack]. Fear explains why OLC pushed the envelope. And in pushing the envelope, OLC took shortcuts in its opinion-writing procedures.""

Goldsmith's tenure at OLC was just ten months. He resigned he said, for several reasons but the main one was that as a result of withdrawing the Torture Memos, "important people inside the administration had come to question my... reliability." He had been unable to finish replacement opinions, so that task fell to his successors.

Revised opinions by Daniel Levin
The superseding OLC opinion of 30 December 2004, "Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A" written by Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, noted that "[w]hile we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum."

In the 15 January 2009 Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001, Steven G. Bradbury, Principal Deputy Assistant Attorney General, of the OLC stated, "We have also previously expressed our disagreement with the specific assertions excerpted from the 8/1/02 Interrogation Opinion: The August 1, 2002, memorandum reasoned that "[a]ny effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." I disagree with that view." and further that "The federal prohibition on torture, 18 U.S.C. §§ 2340-2340A, is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation of detainees conducted pursuant to the President's Commander in Chief authority. The statement to the contrary from the August 1, 2002, memorandum, quoted above, has been withdrawn and superseded, along with the entirety of the memorandum, and in any event I do not find that statement persuasive. The President, like all officers of the Government, is not above the law. He has a sworn duty to preserve, protect, and defend the Constitution and faithfully to execute the laws of the United States, in accordance with the Constitution."

President Obama repudiates the torture memos
Two days after taking office President Obama by Executive Order released January 22, 2009, rescinded all the previous OLC guidance about "detention or the interrogation of detained individuals" and directed that no government agency may rely on any of OLC opinions on that topic between 2001 and 2009. He had declared shortly before taking office "under my administration the United States does not torture." In April 2009 President Obama released redacted versions of the Torture Memos, and shortly afterward stated that his administration would prosecute neither the authors of the memos nor those CIA or DoD personnel or contractors who carried out the acts described in them in the belief they were legal. But in August 2009 the Justice Department announced that those who exceeded approved "techniques" might in fact face prosecution, and the investigation of such actions remains as of this writing (March 2010) ongoing.

Responses to the torture memos
Bybee signed that legal memorandum which defined "enhanced interrogation techniques" in ways that are regarded as torture by the current Justice Department, Amnesty International, Human Rights Watch,, medical experts in the treatment of torture victims, intelligence officials, military judges, and American allies. This memo has been the source of controversy and calls for his impeachment. Bybee is currently the subject of a war crimes investigation in Spain, as well as the subject of an investigation by the Justice Department's Office of Professional Responsibility.

OPR investigation
The Justice Department's Office of Professional Responsibility reviewed the work of principal author John Yoo, now a law professor, and signatory Jay Bybee, now a federal judge, to determine whether the advice given "was consistent with the professional standards that apply to Department of Justice attorneys." In its 261 page final report, the Office for Professional Responsibility concluded that the legal opinions that justified waterboarding and other interrogation tactics on Al Qaeda suspects in American custody amounted to professional misconduct, and that Professor Yoo in particular "knowingly failed to provide a thorough, objective, and candid interpretation of the law," recommending referral to the Bar for disciplinary action. However, career Justice department lawyer David Margolis in a Memorandum dated January 5, 2010 countermanded the recommended referral. While Margolis was careful to avoid "an endorsement of the legal work" which he said was "flawed" and "contained errors more than minor," he concluded that Yoo had merely exercised "poor judgment" which did not rise to the level of "professional misconduct" sufficient to authorize OPR to refer its findings to the state bar disciplinary authorities.

Criticism
The memo has been widely criticized. Yale law school Dean and former Assistant Secretary for Human Rights Harold Koh called it "perhaps the most clearly erroneous legal opinion I have ever read" which "grossly overreads the president's constitutional power." Former Nixon White House counsel John Dean, whose name was cemented in the national consciousness by his involvement in the Watergate scandal, concludes that the memo is tantamount to evidence of a war crime. On March 9, 2006, after emerging from a closed talk at Harvard Law School sponsored by the student chapter of the Federalist Society, a legal organization, Bybee was confronted by around thirty-five protesters.

Yoo's legal opinions were controversial within the Bush Administration. Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions,, while U.S. Navy general counsel Alberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" and dangerous extremism of Yoo's legal opinions. Philip D. Zelikow, former State Department adviser to Condoleezza Rice, testified to the Senate Judiciary Committee, "It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials not only ignored his memos, but attempted to destroy them.

In June 2004, the memo was rescinded by Jack Goldsmith, who had taken over OLC in 2003. He called the memo "deeply flawed" and "sloppily reasoned." Nevertheless, Goldsmith has asserted that he "hadn't determined the underlying techniques were illegal." He continues, "I wasn't in the position to make an independent ruling on the other techniques. I certainly didn't think they were unlawful, but I couldn't get an opinion that they were lawful either."

Goldsmith has defended the memo's authors. "I don't impugn the integrity of anyone. I really do believe that everyone, both me and the people I disagreed with, were acting in good faith. And it's quite possible that I made mistakes as well. We were all acting under intense pressure" in the post 9/11 climate. Douglas Kmiec, a law professor at Pepperdine University, has stated that ultimately the memo "caused no long-term legal damage because it was redrafted and is not legally binding." Even John Dean noted that after the memo leaked, "the White House hung Judge Bybee out to dry."

Robert Scheer asked if Bybee's appointment to a lifetime job as a federal judge was reward for writing the torture memo. In his column in the Los Angeles Times in 2004, Scheer asked, "Was it as a reward for such bold legal thinking that only months later Bybee was appointed to one of the top judicial benches in the country?" and then goes on to proclaim, "The Bybee memo is not some oddball exercise in moral relativism but instead provides the most coherent explanation of how this Bush administration came to believe that to assure freedom and security at home and abroad, it should ape the tactics of brutal dictators".

In March 2009 Baltasar Garzón, a Spanish judge who has considered international war crimes charges against other high-profile figures, considered whether to allow charges to be laid against Bybee and five other former officials of the George W. Bush administration. On April 17, 2009, Spain's Attorney General Cándido Conde-Pumpido issued a non-binding recommendation against the investigation.

On April 19, 2009 an editorial in The New York Times said that Bybee is "unfit for a job that requires legal judgment and a respect for the Constitution" and called for Bybee's impeachment from the federal bench. Friends of Bybee have indicated that the jurist privately regrets the controversial memo's inadequacies and growing notoriety. In response to the criticism, Bybee told the New York Times his signing of the controversial opinions was "based on our good-faith analysis of the law." In addressing the reports of his regrets, he explained in the same article that he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions in retrospect.

In an April 25, 2009 Washington Post article, Senate Judiciary Committee Chairman Patrick J. Leahy (D-VT) is quoted: "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," adding that "the decent and honorable thing for him to do would be to resign [from the U.S. Court of Appeals for the 9th Circuit]". Four days later, Senator Leahy sent a letter to Judge Jay S. Bybee inviting him to testify before the Judiciary Committee in connection with his role in writing legal memoranda authorizing the use of harsh interrogation techniques while serving as the Assistant Attorney General of the Office of Legal Counsel (OLC). Bybee "declined to respond" to the letter".

Judge Betty Fletcher, a member of the United States Court of Appeals for the Ninth Circuit for 30 years, is quoted from a statement: “He is a moderate conservative, very bright and always attentive to the record and the applicable law. I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document”.