Justice Dept. ‘Torture Memos’ Reveal Harsh Interrogation Techniques

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Related subjects: Congressional Oversight, Documents & Treaties, Executive Orders, Executive Powers, J.E. Robertson, Judicial Rulings, Obama's 1st 100 days, Open Government, Rendition & Ghost Flights, Security & Surveillance, U.S. Politics, Warrantless Wiretaps Comments (1)

17 April 2009 :: J.E. Robertson

The Justice Dept. of Pres. Barack Obama yesterday released a series of memos, reported as ‘only lightly redacted’ (for security purposes), detailing the advice the Department gave the Bush White House concerning the legality of harsh interrogation techniques proposed for use by the CIA. Pres. Obama sought to preclude a political firestorm by pledging not to prosecute CIA agents who may have implemented the techniques, if they had been advised the techniques were legal, but no such immunity was offered to administration officials who may be liable for having deliberately misinterpreted existing law or authorized illegal techniques.

A court in Spain is currently investigating the role of six officials of the former US administration in conceiving of, approving and/or ordering the use of banned forms of torture during or in relation to interrogation of terror suspects. Some supporters of the current president had hoped he would take a hardline toward former Bush officials involved in the planning of s0-called ‘enhanced interrogations’, in part because Obama, a one-time Constitutional law professor, was an avid critic of the policies, framing them as an afront to the rule of law and a violation of the Constitution.

The New York Times reports:

In dozens of pages of dispassionate legal prose, the methods approved by the Bush administration for extracting information from senior operatives of Al Qaeda are spelled out in careful detail — like keeping detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears.

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The American Civil Liberties Union, which had sued under the Freedom of Information Act, said the memos clearly describe criminal activity and a plan to implement it. The civil rights organization called for an independent prosecutor to investigate the alleged offenses and bring those responsible for plotting the radical shift in US government policy to justice.

The release of just four memos detailing the internal debate at the Justice Dept. as to the legality or the viability of arguing the legality of techniques that appeared to be banned under the US Constitution, the Uniform Code of Military Justice, the Anti-torture Statute, the Geneva Conventions, the Universal Declaration of Human Rights and other treaties, has shocked many, who remained convinced the former US administration had never explicitly authorized torture. Again, the New York Times reports:

Together, the four memos give an extraordinarily detailed account of the C.I.A.’s methods and the Justice Department’s long struggle, in the face of graphic descriptions of brutal tactics, to square them with international and domestic law. Passages describing forced nudity, the slamming of detainees into walls, prolonged sleep deprivation and the dousing of detainees with water as cold as 41 degrees alternate with elaborate legal arguments concerning the international Convention Against Torture.

There has also been some concern about the Constitutionality of the very process of redefining torture law and interrogation policy. The US Constitution clearly lays out specific legal responsibilities for the three major branches of the federal government. The Congress writes the laws, the Executive enforces them (read: follows them, makes sure others follow them), the Judiciary interprets laws and compares them against the Constitution to check for validity. Only the Judiciary really has this interpretive authority.

The Bush White House had asked the Justice Dept. to issue findings on the legality of certain procedures. But the Justice Dept. memos have been interpreted by some observers, from the outset, as an attempt to usurp the Constitutional authority of Congress to make law and/or of the Judiciary to interpret it. This Constitutional question raises the possibility that the Justice lawyers, at the Office of Legal Counsel, may have overlooked important court rulings that put additional limitations on the room for interpreting the legality of harsh techniques into existing bans.

Jay S. Bybee, then head of the Office of Legal Counsel, signed the first memo in August 2002. In that memo, the Justice Dept. advised the CIA in detail about techniques such as waterboarding, and other harsh treatment, affirming their legality, despite existing bans. In May 2005, Steven G. Bradbury signed three more memos relating to the use of harsh interrogation tactics thought banned under domestic and international law. The memos were designed to reassure the CIA that its actions were legal and to encourage, it would seem, further use of the techniques.

The redefinition of US torture policy had been part of a sweeping philosophical shift undertaken by the Bush White House, which conceived of the President as a permanent commander-in-chief with extraordinary powers to interpret and overturn laws for the sake of the national defense. This argument had been made before the Supreme Court, and rejected.

In Hamdan v. Rumsfeld, the Court found, in 2006, that the president does not have the power to make new areas of law or create alternative systems of prosecution. And, as this magazine reported on 18 August 2006:

A federal judge in Detroit ruled early yesterday that Pres. Bush’s NSA surveillance program, which uses wiretaps implemented with no judicial oversight, is unconstitutional. The ruling strongly enforced the point that there are “no powers not created by the Constitution” rejecting the AG’s claim that the Congressional Authorization for the Use of Military Force (in Afghanistan) as a legal platform for sweeping new domestic powers.

That ruling took away the administration’s claim that it had the inherent Constitutional authority to ignore existing legal requirements for tapping citizens’ phones. While laws have been changed in order to permit a form of warrantless wiretapping to continue, many still argue there is no possibility of Constitutional validity for any such spying without judicial warrants.

These memos are of vital historical and legal import, because they may now serve as evidence in any case brought against officials who operated outside the law. That there are “no powers not created by the Constitution”, means that executive officials who assumed powers not enshrined in law, in order to cloak banned activity in the appearance of legality, may face prosecution and even criminal trial.

Pres. Obama, on his second day in office, issued an executive order banning the use of all harsh tactics that could be construed as cruelty or torture. His stated position had long been that, on advice from military and intelligence personnel, the use of coercive interrogation techniques had a far higher likelihood of yielding bad or fabricated information, toxic to the effectiveness of intelligence gathering. This, in addition to the techniques being usable only in contravention of American principles of jurisprudence and democracy.

Sen. Patrick Leahy (D-VT), chairman of the Judiciary Committee, has called for an independent commission of inquiry, which would offer immunity to officials who testify candidly and openly about their involvement in the re-organizing of US torture policy. This, while it seems a gesture of moderation and restraint, interested only in getting at the truth, could also lead to the eventual prosecution of officials who are implicated but who do not testify. No clear program has been offered for how such a commission of inquiry would choose whom to offer immunity to or whether any categorial differentiation would be made.

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