Bybee's Distance Adds to Responsibility for Torture

By Jon Eisenberg, The Recorder

The political philosopher Hannah Arendt wrote famously of "the banality of evil" in "Eichmann in Jerusalem," her 1963 account of the trial of Adolf Eichmann, the Nazi bureaucrat who handled the logistics of murdering millions of Jews. While that phrase has now become almost hackneyed, last week's release of the Department of Justice's "torture memos" is a good occasion to revisit Arendt in a new context: Ninth Circuit U.S. Court of Appeals Judge Jay Bybee's own descent into the banality of evil.

On Aug. 1, 2002, Bybee, then an assistant attorney general, signed an 18-page memo to the CIA approving its use of 10 "techniques" in the interrogation of a captive al-Qaida operative named Abu Zubaydah. The CIA wanted assurance that the techniques would not violate laws against torture. Bybee provided that assurance in chillingly detached prose. Here are some highlights:

• Prolonged sleep deprivation is acceptable because "it cannot be said to constitute a threat of severe physical pain or suffering from the perspective of a reasonable person in Zubaydah's position." Indeed, "it is not uncommon for someone to be deprived of sleep for 72 hours and still perform excellently on visual-spatial motor tasks. ... In one case, even after 11 days of deprivation, no psychosis or permanent brain damage occurred. ... [T]he effects remit after a few good nights of sleep."

• "Cramped confinement" for up to 18 hours in complete darkness in a "container" just large enough for "the individual" to "stand up or sit down" is fine because "[w]e have no information ... that the limited duration for which the individual is kept in the boxes causes any substantial physical pain," and "the use of the confinement boxes does not constitute a procedure calculated to disrupt profoundly the senses or personality."

• It's OK to put insects in Zubaydah's confinement box, knowing "he appears to have a fear of insects," because, "though the introduction of an insect may produce trepidation in Zubaydah ... it certainly does not cause physical pain." However, it's best not to tell him in advance that there will be insects in the box: "If you do so ... you must inform him that the insects will not have a sting that would produce death or severe pain."

• "A variety of stress positions may be used" for long periods because they merely "involve the use of muscle fatigue to encourage cooperation and do not themselves constitute the infliction of severe physical pain or suffering."

• Go ahead and waterboard him. Admittedly, the procedure "causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon-dioxide level stimulates increased effort to breathe. This effort plus the cloth [placed over the mouth and nose and saturated with water] produces the perception of 'suffocation and incipient panic,' i.e., the perception of drowning." But "although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. ... The waterboard is simply a controlled acute episode."

What's shocking about this memo is not just the approval of acts that any civilized society would call torture, but also the detached tone of the memo's lawyerly prose. This is the evil of which Arendt spoke: the remoteness of the desk-bound bureaucrat from the torture chamber itself.

In "Eichmann in Jerusalem," Arendt wrote of Eichmann: "It was sheer thoughtlessness — something by no means identical with stupidity — that predisposed him to become one of the greatest criminals of that period." She called this phenomenon "the strange interdependence of thoughtlessness and evil," concluding that "such remoteness from reality and such thoughtlessness can wreak more havoc than all the evil instincts taken together which, perhaps, are inherent in man."

And she quoted from the court's written judgment against Eichmann: "[T]he extent to which any one of the many criminals was close to or remote from the actual killer of the victim means nothing, as far as the measure of his responsibility is concerned. On the contrary, in general the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands."

Bybee did not write the torture memo he signed; it was written by John Yoo, then at the Department of Justice's Office of Legal Counsel and currently a law school professor. Bybee just signed off on the memo, two desks removed from the torture chamber. Did he even read it? He must have. Did he think much about it? How could he have, and then signed such an abhorrent thing? Like Eichmann, he was not stupid, just thoughtless. But this is evil thoughtlessness.

The judgment against Eichmann speaks to Bybee: Far from absolving him of guilt, his remoteness from the actual torturers — his thoughtlessness — increases the degree of his responsibility. His is a special kind of evil — the evil of nonchalance where there should be outrage.

Arendt quoted Eichmann's defense attorney as saying: "Eichmann feels guilty before God, not before the law."

I wonder whether Bybee feels guilty before God. He certainly has no business being a federal judge. His presence on the Ninth Circuit U.S. Court of Appeals brings disgrace to that court. He should resign.

Jon B. Eisenberg is an appellate attorney in Oakland with the law firm of Eisenberg and Hancock. The views expressed are solely those of the author.