LDS lawyers, psychologists had a hand in torture policies

Published April 29, 2009 6:00 pm
This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

An overheard conversation among several women at a local deli: "I can't believe this country elected Obama as president; it must be a sign of the end times when the Constitution will hang by a thread." The irony of this uniquely Utah political thread about church elders saving the Constitution might have shocked the lunch bunch had they read The Dark Side by Jane Mayer (Doubleday, 2008).

Reading Mayer's disturbing book is likely to lead to the conclusion that the Constitution is more imperiled than ever; but it also reveals the troubling fingerprints of several of my fellow Mormons whose handiwork, not the Obama election, did so much to create the present crisis.

Although the decisions which put us in the grim business of torture, body-snatching, extraordinary renditions, making people disappear, indefinite confinement without charges and warrantless wiretapping were made by the president and vice president, members of The Church of Jesus Christ of Latter-day Saints served as helpful enablers. Not only did they provide the legal architecture, they provided the "scientific" patina for the plunge into the barbaric business of torture.

Take Latter-day Saint Timothy E. Flanigan, deputy White House counsel, who, along with David Addington, John Yoo, Alberto Gonzales, and Jim Haynes comprised the secretive "War Council" of lawyers -- a self-appointed group Mayer describes as having virtually no experience in law enforcement, military service, counterterrorism or the Muslim world.

Together, they were the brain trust that devised the legal cover that Vice President Dick Cheney needed to work his will. They secretly crafted the warrantless surveillance program which allowed the National Security Agency to intercept telephone calls and e-mails to and from American citizens within the United States. They secretly devised the Bush military commissions, which were essentially kangaroo courts and legally insufficient to satisfy the minimal adjudicatory standards required under the Geneva Conventions, which, as provided by the Constitution and Congress, constitute the supreme law of the land. They secretly conspired to ignore the law and frame interrogation techniques around the methods of the Spanish Inquisition, the Soviet KGB and Chairman Mao.

Flanigan once told his LDS ward congregation that it was gratifying "to work in a White House where every day was begun with prayer." In 2005, prior to his rejection by the Senate to be Gonzales' deputy attorney general, Flanigan was asked whether waterboarding, mock executions, physical beatings and painful stress positions were off-limits. "[It] depends on the facts and circumstances... ." He went on: "'Inhumane' can't be coherently defined."

BYU law school graduate Jay S. Bybee was the assistant attorney general directing the Department of Justice's Office of Legal Counsel. At the instigation of Addington and Yoo, Bybee issued official legal opinions that redefined the crime of torture to make it all but impossible to commit. Barbarity was not torture unless it created pain equal to death or organ failure. A newly-declassified Bybee memorandum lists 10 previously top-secret interrogation techniques approved for use by the CIA, including waterboarding.

Incredibly, Bybee seems to have been unaware that the United States had prosecuted waterboarding as a war crime after World War II. In 2003, before his role in authorizing U.S. torture was known, Bybee was given a lifetime judicial appointment on the 9th U.S. Circuit Court of Appeals. Had his role in torture been known, it is unlikely he would have been confirmed.

Two devout Mormons also engineered the more grisly wet work. Because the CIA lacked personnel in 2001 with interrogation expertise, the agency turned to two psychologists, James E. Mitchell and John B. Jessen, who had worked with the Air Force's Survival, Evasion, Resistance and Escape programs. Neither had an intelligence or interrogation background or had experience with Muslim terrorists, but, according to the FBI, they had experience in designing, testing, implementing and monitoring torture techniques that were illegal in the United States and elsewhere in the civilized world.

These two were responsible for "reverse-engineering" the SERE program -- which was intended to toughen American pilots against torture (and the false confessions it had produced in the Korean War) -- and they built the CIA's surreal secret interrogation program around the same brutal coercion that had successfully forced American POWs to lie to their North Korean and Chinese captors. In other words, they assumed that the very brutality which had forced American soldiers to lie would magically force a Muslim terrorist to tell the truth, even if he had to be waterboarded 183 times.

Mitchell advised that suspects must be treated like dogs in a cage. "It's like an experiment, when you apply electric shocks to a caged dog, after a while, he's so diminished, he can't resist." The Mitchell/Jessen methodology became the basis for prisoner treatment at Guantanamo, Bagram, CIA secret prisons and Abu Ghraib. It involved isolation, sensory deprivation, disorientation, nudity, sexual humiliation, waterboarding, painful stress positions, withholding food and medical treatment, extended sleep deprivation and subjection to temperature extremes. These were used singly and, more commonly, in combination with one another.

Retired Air Force Col. Steve Kleinman, a former SERE instructor and interrogator, says of Mitchell and Jessen: "I think they have caused more harm to American national security than they'll ever understand."

David R. Irvine is a Salt Lake attorney and former Utah legislator residing in Bountiful. He was commissioned in the U.S. Army Reserve as a strategic intelligence officer in 1967 and retired as a brigadier general. He taught prisoner of war interrogation and military law for 18 years for the Sixth United States Army Intelligence School.

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