Former Deputy AG under Reagan Victoria Toensing sets the record straight on origin and purpose of the so-called “torture memos”.

“Sen. Patrick Leahy wants an independent commission to investigate them. Rep. John Conyers wants the Obama Justice Department to prosecute them. Liberal lawyers want to disbar them, and the media maligns them.

What did the Justice Department attorneys at George W. Bush’s Office of Legal Counsel (OLC) — John Yoo and Jay Bybee — do to garner such scorn? They analyzed a 1994 criminal statute prohibiting torture when the CIA asked for legal guidance on interrogation techniques for a high-level al Qaeda detainee (Abu Zubaydah).

In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard: Our capture and treatment could not “shock the conscience” of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.

The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law’s definition of torture is circular. Torture under that law means “severe physical or mental pain or suffering,” which in turn means “prolonged mental harm,” which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting “severe physical pain or suffering.” What is “prolonged mental suffering”? The term appears nowhere else in the U.S. Code.”

There is a reason why critics haven’t really read the memos or bothered to check the facts is because there is nothing there they can call “illegal” or worthy of “impeachment”. In fact it’s quite the opposite. All the more reason to have the hearings and bring it all out so that those who have questioned what we did to make America safe will be shamed.