The Morning After The Memos

(This piece was written by Ateqa Khaki, who is the Advocacy Coordinator for the ACLU's National Security team.)

As you may know by now, yesterday, the Justice Department released four critical legal memos that provided the legal basis for the CIA’s torture program in response to an ACLU lawsuit. The Obama administration should be highly commended for living up to its promise of transparency by releasing the memos with minimal redactions, instead of covering up the Bush administration’s crimes.

The memos are shocking. They describe in excruciating detail barbaric interrogation methods used by the CIA on its prisoners and the legal contortions used by the Office of Legal Counsel to ratify those methods.

In an 18-page memo (PDF) dated August 1, 2002, then-Assistant Attorney General to the Office of Legal Counsel, Jay Bybee, analyzes specific techniques – facial holds and slaps, placing detainees in confinement boxes (including placing one detainee in a box with an insect after he conveyed having a fear of insects), prolonged sleep deprivation, and waterboarding – and concludes that these methods, administered individually and in combination, do not constitute severe physical or mental pain and suffering. Shockingly, Bybee also states that the presence of medical personnel at the time of interrogation implied that “those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering.” He concludes that the absence of specific intent negates the charge of torture. This memo is considered one of the cornerstones of the torture program, and provides written authorizations to the CIA to use such harsh interrogation techniques.

And that’s just information contained in one of the four memos released yesterday.

In sum, these documents, and other still missing secret memos make clear that the abusive interrogation techniques employed on detainees were part of a choreographed torture program – one that was authorized by high-ranking officials from the Bush administration. As Jameel Jaffer, the Director of our National Security Project stated, the memos “[A]re simply political documents that were meant to provide window dressing for war crimes.” They were written to insulate the torturers and those who authorized the torture from prosecution for acts that are illegal under several domestic and international laws.

Both President Obama and Attorney General Holder have made statements revoking Bush-era torture practices. Yet in a statement released yesterday, President Obama stated that interrogators who carried out their duties “in good faith [relying] upon legal advice from the Department of Justice” will not be subject to prosecution.”

It is difficult to see how anyone could have relied “in good faith” on these legal opinions. And, it’s important to keep in mind that the Bybee memo was written on August 1, 2002. According to a DOJ Office of Inspector General report (PDF), Abu Zubaydah was subjected to interrogation and “borderline torture” in the spring of 2002, before the Bybee memo was issued. This raises serious concerns about the treatment of detainees before this first torture memo was issued, and demands an investigation into the actions of those who interrogated Abu Zubaydah during that time.

And, it would be a mistake to read President Obama and Attorney General Holder’s comments regarding immunity too broadly. We don’t think their comments rule out an investigation into torture and abuse, and where warranted, criminal prosecution of those who authorized this abuse (both the lawyers who wrote the legal opinions and the members of the Bush administration who commissioned the memos – collectively, architects of the torture program).

There remain still-outstanding documents that the American public has not yet seen. We will continue to seek more information about the treatment of detainees, including a report by the CIA inspector general concerning the CIA’s interrogation and detention program, and a September 2001 directive from then-President Bush authorizing the CIA to set up secret detention centers overseas. Other ACLU FOIA lawsuits are seeking the release of memos written by White House staff in 2003 and 2004 that provided the CIA with assurances that the torture program was lawful, and documents relating to the National Security Council’s supervision of the CIA’s torture program. Clearly, much still remains to be known.

You can join the ACLU in demanding accountability. Because, while the release of these documents was a very important step (and bodes well for chipping away at the wall of government secrecy that prevailed for the last eight years), transparency is only a first step towards accountability. And accountability is absolutely necessary in order to fully move on, bring an end to the use of torture, and restore the rule of law.

(There has been a flurry of coverage related to the memos’ release, including this ABC News piece with ACLU Executive Director Anthony Romero, a CNN piece with ACLU attorney and counsel in the Torture FOIA lawsuit, Amrit Singh, an NPR piece this morning featuring Jameel Jaffer, stories in The New York Times and Washington Post, a mention on the New Yorker blog, and a Glenn Greenwald conversation on Salon.com with Jameel Jaffer).

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