The Torture Memos: The Case Against the Lawyers


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.”

Dick Cheney
Dick Cheney; drawing by John Springs

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…

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