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12 Oct

The Torture Memos

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On August 24, 2009, the Obama Administration released a newly declassified version of a 2004 Inspector General report on the CIA’s controversial coercive interrogation tactics. To coincide with the release of the report, The New Press is pleased to announce the publication of The Torture Memos: Rationalizing the Unthinkable, edited by renowned constitutional scholar David Cole. The book includes the full set of Justice Department legal memos authorizing the CIA’s interrogation tactics and an incisive commentary that offers the first comprehensive legal analysis of the arguments advanced to approve the program. This brief excerpt from Cole’s introduction offers only a glimpse of his complete analysis of the documents and their import.


“The Justice Department memos do precisely what Orwell foretold:
twist language and the law to rationalize the unthinkable.

—from the introduction by David Cole

THOSE METHODS, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing,” said Dennis Blair, President Barack Obama’s director of national intelligence, as he sought to downplay the horror of CIA interrogation techniques described and sanctioned in four previously secret Justice Department memos disclosed on April 16, 2009. The techniques, he suggested, would have looked very different in August 2002, when they were first authorized. [1]

“It was a bright cold day in April, and the clocks were striking thirteen.” So begins 1984, the classic novel of the security state by George Orwell. It’s unlikely that Blair intended the allusion, but the reference could not have been more apt. The Justice Department memos do precisely what Orwell foretold: twist language and the law in order to rationalize the unthinkable. The interrogation techniques used by the CIA against al Qaeda suspects have inspired two competing narratives. Many have argued that the techniques were patently illegal, and surely would have been viewed as such had an enemy of the United States used them against our soldiers—in August 2002 or April 2009. No good-faith legal argument could possibly give a green light to stripping a suspect naked, slamming him repeatedly into a wall, dousing him with cold water, slapping his face, depriving him of any sleep for eleven days straight, forcing him into stress positions and small dark boxes for hours at a time, and waterboarding him repeatedly—183 times in the case of Khalid Sheikh Mohammed, and 83 times in the case of Abu Zubaydah, two al Qaeda detainees. [2]

How did it become official U.S. policy to treat human beings in our custody in this manner? What rationales could possibly justify such conduct? And what is
to be done now to correct the wrongs?

Others, however, such as Dennis Blair and former Attorney General Michael Mukasey, point to the overwhelming panic and fear that pervaded the United States in the wake of the terrorist attacks of September 11, 2001; note the ambiguity of the laws governing torture and cruel, inhuman, and degrading treatment; and insist that government officials sought only to approach, not to cross, the line of illegality. Cabinet officials directed that the CIA be permitted to use only lawful interrogation tactics, and in the legal memos reproduced here, Justice Department lawyers engaged in a good-faith effort to draw a difficult line. One might disagree with that line with the benefit of hindsight, they would say, but surely no crimes were intentionally committed. [3]

The release of the previously secret Justice Department memos in April 2009 allows us to go beneath the surface of these competing claims and examine how George W. Bush’s administration actually sought to justify its actions. This volume reproduces, for the first time, all of the principal memos drafted by the Justice Department’s Office of Legal Counsel (OLC) on the CIA’s interrogation program. The first two were issued in secret on August 1, 2002; the third was issued publicly on December 30, 2004; the last three were issued secretly in May 2005. The memos have been edited only to eliminate unnecessary repetition. (Some sections remain blacked out because they are still classified.) The final document in the book, drafted by the office of Senator John D. Rockefeller IV, chairman of the Select Committee on Intelligence, provides a valuable official overview of the process that led to the OLC memos. [4]

Analysis of all six memos taken together tells a more complicated story than the two competing narratives that have thus far dominated public debate. The memos show that there were indeed many close and difficult questions of judgment to be made, upon which reasonable lawyers could disagree. Not all physically coercive interrogation, for example, is torture. And determining whether tactics rise to the level of torture requires difficult distinctions between “severe” and less-than-severe pain and suffering, and between “prolonged” and temporary mental harm.

The secret memos now disclosed reveal that even as the Office of Legal Counsel sought to convince the public that it had changed its view, behind the
scenes it continued to approve all the
same interrogation tactics.

Precisely because 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 on every question, no matter how much the law had to be stretched, the OLC lawyers reached the same result—the CIA could do whatever it had proposed to do.

Most tellingly, the lawyers secretly preserved that bottom line even as the law in public appeared to tighten its standards to prohibit these tactics. Thus, when its initial August 2002 memo was leaked to the press and widely condemned, the OLC publicly issued a replacement memo, dated December 30, 2004, which pointedly rejected several arguments and interpretations advanced in its prior memo. But the secret memos now disclosed reveal that even as the OLC sought to convince the public that it had changed its view, behind the scenes it continued to approve all the same interrogation tactics. And when, in 2005, Congress threatened to tighten the law further by confirming that every person in U.S. 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. The latter memos were issued years after the panic induced by the 9/11 attacks had begun to fade. When considered as a whole, the memos read not as an objective assessment of what the law permits or precludes, but as a strained effort to rationalize a predetermined—and illegal—result. Rather than demand that the CIA conform its conduct to the law, the lawyers contorted the law to conform it to the CIA’s desires.

The memos reproduced here, even more than the photographs from Abu Ghraib or interrogation records from Guantánamo, are the “smoking guns” in the torture controversy. They show that abusive tactics were the deliberately considered official policy of the executive branch, not the isolated misdeeds of a few “bad apples” or rogue agents. They reveal a concerted effort over many years to maintain the program, even as the law changed in order to prohibit it more clearly. And they provide an object lesson in the limits of law when employed by those who seek not to uphold legal principle and protect the vulnerable, but to facilitate the wishes of the powerful and minimize the possibility of accountability.

How did it become official U.S. policy to treat human beings in our custody in this manner? What rationales could possibly justify such conduct? And what is to be done now to correct the wrongs? These are the critical questions posed by the Bush administration’s foray into “enhanced interrogation techniques.” The Justice Department memos reproduced here shed important and disturbing new light on these questions, and show that at the core of the problem was the failure of some of the nation’s most powerful lawyers to live up to their ethical and legal responsibilities.

—David Cole

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