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The Torture Memos: The Case Against the Lawyers

Dick Cheney; drawing by John Springs

1.

On Monday, August 24, as President Obama began his vacation on Martha’s Vineyard, his administration released a previously classified 2004 report by the CIA’s inspector general that strongly criticized the techniques employed to interrogate “high-value” al-Qaeda suspects at the CIA’s secret prisons.1 The report revealed that CIA agents and contractors, in addition to using such “authorized” and previously reported tactics as waterboarding, wall-slamming, forced nudity, stress positions, and extended sleep deprivation, also employed a variety of “unauthorized, improvised, inhumane and undocumented” methods. These included threatening suspects with a revolver and a power drill; repeatedly applying pressure to a detainee’s carotid artery until he began to pass out; staging a mock execution; threatening to sexually abuse a suspect’s mother; and warning a detainee that if another attack occurred in the United States, “We’re going to kill your children.”

The inspector general also reported, contrary to former Vice President Dick Cheney’s claims, that “it is not possible to say” that any of these abusive tactics— authorized or unauthorized—elicited valuable information that could not have been obtained through lawful, nonviolent means. While some of the CIA’s detainees provided useful information, the inspector general concluded that the effectiveness of the coercive methods in particular—as opposed to more traditional and lawful tactics that were also used—“cannot be so easily measured.” CIA officials, he wrote, often lacked any objective basis for concluding that detainees were withholding information and therefore should be subjected to the “enhanced” techniques. The inspector general further found no evidence that any imminent terrorist attacks had been averted by virtue of information obtained from the CIA’s detainees. In other words, there were no “ticking time bombs.”

The same day, Attorney General Eric Holder announced that he was asking John Durham, a federal prosecutor already investigating the CIA’s suspicious destruction of its interrogation videotapes, to expand his inquiry to include a preliminary investigation into some of the CIA’s most extreme interrogation tactics. Holder simultaneously announced that he would not prosecute “anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

The latter limitation suggests that Holder has directed the investigation to focus only on those interrogators who engaged in unauthorized conduct, but not on the lawyers and Cabinet officials who authorized the CIA to use specific techniques of brutal physical coercion in the first place. If the inquiry stops there, it will repeat the pattern we saw after the revelation of the abuses at Abu Ghraib, in which a few low-level individuals were prosecuted but no higher-ups were held accountable.

Lost in all the attention given to the CIA inspector general report and Holder’s announcement was still another packet of documents released later the same day, from the Justice Department’s Office of Legal Counsel (OLC). When these memos, letters, and faxes are considered together with an earlier set disclosed in April 2009, it becomes clear that there is an inherent conflict of interest in the investigation Holder has initiated. Justice Department lawyers were inextricably involved in justifying every aspect of the CIA program. They wrote memo after memo over a five-year period, from 2002 to 2007, all maintaining that any interrogation methods the CIA was planning to use were legal. And now the Justice Department is investigating not itself, but only the CIA, for atrocities in which both were deeply implicated.

While the memos from the Office of Legal Counsel have received less attention than the details of brutal treatment recorded by the CIA inspector general, these memos are the real “smoking gun” in the torture controversy. They reveal that instead of requiring the CIA to conform its conduct to the law, the OLC lawyers contorted the law to authorize precisely what it was designed to forbid. They concluded that keeping suspects awake for eleven days straight, stripping them naked, exposing them to cold temperatures, dousing them with water, slamming them into walls, forcing them into cramped boxes and stress positions for hours at a time, and waterboarding them hundreds of times were not torture, not cruel, not inhuman, not even degrading, and therefore perfectly legal. The memos make clear that true accountability cannot stop at the CIA interrogators, but must extend up the chain of authority, to the lawyers and Cabinet officers who approved the “enhanced interrogation techniques” in the first place.

The OLC’s defenders argue that it was difficult to define concretely exactly what constitutes torture or cruel, inhuman, or degrading treatment and that there was little direct precedent to go on. There is some truth to these arguments. Not all physically coercive interrogation is torture. Determining whether tactics qualify as torture under federal law requires difficult distinctions between “severe” and less-than-severe pain and suffering, and between “prolonged” and temporary mental harm. Former Attorney General Michael Mukasey has argued that the lawyers acted in good faith to render their best judgment on these issues in perilous times.

Precisely because many of the questions were so difficult, however, one would expect a good-faith analysis to reach a nuanced conclusion, perhaps approving some measures while definitely prohibiting others. Yet it is striking that on every question, no matter how much the law had to be stretched, the Bush administration lawyers reached the same result—the CIA could do whatever it had proposed to do. And long after federal officials acknowledged that the threat of terror had substantially subsided, the OLC continued to distort the law so as to facilitate brutality.

Most disturbingly, the OLC lawyers secretly maintained their position even as the relevant facts changed, and even after the law developed to underscore that the CIA’s tactics were illegal. There was one law for public consumption, but another quite different law operating in secret. For example, when the Justice Department’s initial August 2002 memo interpreting the torture statute was leaked to the press in June 2004 and widely condemned, the department publicly issued a replacement memo, dated December 30, 2004, which rejected several interpretations advanced in its earlier memo. But the recently disclosed documents reveal that the department continued in secret to approve all the same interrogation tactics.

In 2005 Congress threatened to restrict CIA tactics further by confirming that every person in US custody was protected against not only torture, but all cruel, inhuman, and degrading treatment. The Bush lawyers drafted yet another secret opinion, concluding that none of the CIA’s tactics could even be considered cruel, inhuman, or degrading. And when the Supreme Court ruled in 2006 that the Geneva Conventions, which broadly prohibit all mistreatment of wartime detainees, applied to al-Qaeda, the OLC lawyers wrote still another secret opinion recommending that President Bush issue an executive order that would “authoritatively” establish that the CIA’s tactics did not violate the laws of war—simply because the president said so. When considered as a whole, the memos reveal a sustained effort by the OLC lawyers to rationalize a predetermined and illegal result.

2.

History has shown that even officials acting with the best intentions may come to feel, especially in times of crisis, that the end justifies the means, and that the greater good of national security makes it permissible to inflict pain on a resisting suspect to make him talk. History has also shown that inflicting such pain—no matter how “well-intentioned”—dehumanizes both the suspect and his interrogator, corrodes the system of justice, renders a fair trial virtually impossible, and often exacerbates the very threat to the nation’s security that was said to warrant the interrogation tactics in the first place.

Knowing that history, the world’s nations adopted the Geneva Conventions and the Convention Against Torture (in 1949 and 1984), both of which prohibit torture in absolute terms. The Convention Against Torture provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

If laws such as the Geneva Conventions and the Convention against Torture are to work, however, lawyers must stand up for them. That means being willing to say no when asked whether it is permissible to subject a human being to the brutality that the CIA proposed. Yet the OLC lawyers always said yes. Where precedents were deemed helpful, they cited them even if they were inapposite; where precedents were unhelpful, they did not cite them, no matter how applicable. They treated the law against torture not as a universal moral prohibition, but as an inconvenient obstacle to be evaded by any means necessary.

Such an approach to the law is especially alarming in view of the particular role of the Office of Legal Counsel. That office is designed to serve as the “constitutional conscience” of the Justice Department. As Jack Goldsmith, one of the heads of the OLC under President Bush, has said, “OLC is, and views itself as, the frontline institution responsible for ensuring that the executive branch charged with executing the law is itself bound by law.” It attracts some of the nation’s best lawyers, and its alumni include former Chief Justice William Rehnquist, Justice Antonin Scalia, former Solicitors General Theodore Olson and Walter Dellinger, former Yale Law School Dean and current State Department Legal Adviser Harold Koh, Harvard Law Professor Cass Sunstein, and former Yale University President Benno Schmidt Jr.

Private lawyers are sometimes considered “hired guns,” whose obligation is to interpret the law as far as possible to do their client’s bidding. We rely on the adversarial system and public airing of arguments and evidence to reach a just result. Lawyers in the Office of Legal Counsel, by contrast, work in a setting that affords no adversarial presentation or public scrutiny. In that position, the lawyer’s obligation is to provide objective advice as an “honest broker,” not to act as an advocate or a hired gun.

When it comes to covert activities such as the CIA interrogation program, judgments of legality are often uniquely in executive hands, since the judiciary, Congress, and the public may not even know of the activities’ existence. In addition, on the question of torture the OLC lawyers were the last—and only—line of defense, since the detainees were denied all recourse to the outside world.

If OLC lawyers had exercised independent judgment and said no to the CIA’s practices, as they should have, that might well have been the end of the Bush administration’s experiment with torture. Vice President Dick Cheney and his chief counsel, David Addington, would undoubtedly have put tremendous pressure on the OLC to change its views; but had the OLC stood firm, it is difficult to imagine even the Bush-Cheney White House going forward with a program that the OLC said was illegal.

The OLC lawyers had the opportunity, and the responsibility, to prevent illegal conduct before it occurred. The lawyers involved in drafting the “torture memos”—Jay Bybee, John Yoo, Daniel Levin, and Steven Bradbury—failed to live up to these obligations. In their hands, law became not a constraint on power but the instrument of unconscionable abuse.

  1. 1

    Office of Inspector General, “Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003),” May 7, 2004, available at www.aclu.org/oigreport/.

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