Filling in the details of the trail of torture memos
posted by John Ip
With two major sets of documents related to torture having been disclosed in 2009 (see here and here), I thought it would be useful to try and bring together how some of the more recently disclosed memos fit into the story of the CIA’s Program for detaining and interrogating high value detainees. In doing so, I am of course building on the work of others. (See for example, this New York Times story from May, Foreign Policy’s Torture Timeline, which has a broader scope than what I intend to post about, and Harold Bruff’s very interesting Bad Advice, which I recently finished reading. See also this New York Review of Books article by David Cole, which appeared while I was writing this post.)
According to the CIA Inspector General’s report (discussed in a previous post), a key event was the March 2002 capture of Abu Zubaydah, regarded as a senior al Qaeda operative. The CIA developed a set of coercive interrogation techniques (EITs – or enhanced interrogation techniques), and used them on Zubaydah with the knowledge and at least implicit permission of President Bush’s top advisors. This occurred prior to a formal opinion as to legality from the Department of Justice – in the interim, oral guidance was relied on. The CIA at one point reportedly suspended the use of the coercive interogation techniques pending formal authorization.
In August 2002, the Office of Legal Counsel issued formal legal guidance in the form of the August 2002 memoranda concerning the interpretation and application of the Federal Torture Statute (18 USC 2340 & 2340A). The original Bybee/Yoo memo, which became public in 2004, set out the notoriously narrow definition of torture, and has been extensively commented on elsewhere. A recently disclosed companion memo entitled ‘Interrogation of al Qaeda Operative‘, dated the same day, concludes that the interrogation techniques the CIA proposed to use on Zubaydah would not violate the Torture Statute. Indeed, but for the chilling subject matter, it is a prosaic manifestation of law school-style legal method: interpret the law, apply to the facts.
Soon after its public disclosure, the original August 2002 memo on the Torture Statute was withdrawn by Jack Goldsmith. As Goldsmith himself recounts in The Terror Presidency, his action undermined the assurances the CIA had been given that their interrogation practices did not violate the Torture Statute. The memo was not replaced until a 30 December 2004 memo by Daniel Levin was issued. The Levin memo was more circumspect, and backed off some of the more extravagant claims its predecessor had made. It reportedly necessitated operational changes.
It also necessitated new legal opinions. The existence of these opinions, written in 2005, were revealed in sources such as The New York Times and Jane Mayer’s The Dark Side. With the subsequent disclosure of more documents, including several further memoranda discussing torture and interrogation, it is possible to fill in the details. A New York Times story from June this year included leaked emails dated late April 2005 from then-Deputy AG James Comey. The emails reveal the political pressure that the Department of Justice was under, and the reservations that Comey had. In terms of a chronology, the first email is instructive in that it confirms that the Levin memo meant that OLC had to work on new memos, and that two new memos – one addressing individual interrogation techniques and the other addressing the combined use of techniques – were in the pipeline.
This corresponds neatly with two legal opinions by Steven Bradbury issued on May 10 2005. The first, Re: Application of 18 USC §§2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee, concludes that the separate use of specified enhanced interrogation techniques – including cramped confinment, stress positions, sleep deprivation and waterboarding – did not violate the Torture Statute. The second, Re: Application of 18 USC §§2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees, comes to the same conclusion as the first with regard to the combined use of cetain techniques.
These two memos are remarkable in their own right. The first, because it is stated to be consistent with the 2004 Levin opinion, comes to its conclusion without resort to the Bybee/Yoo memo’s reliance on criminal law defences, or that memo’s extravagant constitutional claims. Thus its conclusion is based solely on the interpretation of the Torture Statute. Similarly, the second memo’s conclusion – that combinations of techniques (for example, waterboarding plus ‘dietary manipulation’ and sleep deprivation) are not prohibited by the Torture Statute – is also based on the words used in the provision.
The next memo (from May 30 2005), Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees, concludes that the CIA’s use of enhanced interrogation techniques is consistent with article 16 of CAT, which obliges states to prevent ‘acts of cruel, inhuman or degrading treatment or punishment’. Bradbury comes to this incredible conclusion by relying on two jurisdictional arguments and one substantive argument. Interesting discussions of the substance of the jurisdictional arguments can be found here and here. As for the substantive argument, Bradbury concludes that the CIA’s use of enhanced interrogation techniques – complete with limitations and controls – do not violate article 16 because it does not ‘shock the conscience’, this being the relevant test due to the US reservation to article 16 of CAT. In sum, this memo’s remarkable conclusion – alas, I fear that I am wearing out the adjective ‘remarkable’ – is that the CIA’s enhanced interrogation techniques do not amount to cruel, inhuman or degrading treatment.
Unlike the other memos discussed, which fixate on the Torture Statute (presumably because it criminalized any actions by CIA agents outside the United States that constituted torture), this memo concerns article 16, breach of which is not criminal (for more on the distinction in international law between ‘criminal’ acts and ‘illegal’ acts, see here). Perhaps there was a perceived need to address article 16, given that the CIA Inspector General’s Report had identified this (at para 253) as having been overlooked by the OLC in 2002. It may also have been, as David Cole suggests, a pre-emptive strike on the impending prohibition on the cruel, inhuman, or degrading treatment of anyone in US custody that was eventually enacted as part of the Detainee Treatment Act (DTA) in December 2005.
Thus far, I have been discussing memos that were disclosed earlier this year. I now turn to three documents that were released at the end of August (see here). All three were authored by Steven Bradbury, and addressed to John Rizzo, General Counsel for the CIA. The first is a letter, dated 31 August 2006, that memorialises previous oral advice that the conditions of confinement at CIA black sites did not violate Common Article 3 of the Geneva Conventions. The oral advice was tendered on 30 June 2006, one day after the Supreme Court held that Common Article 3 was applicable to the conflict with al Qaeda in Hamdan v Rumsfeld.
The second document is a memorandum dated 31 August 2006, Re: Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Detention Facilities. This memo concludes that the conditions of confinement at CIA black sites did not breach the requirements of the Detainee Treatment Act 2005. As with the 30 May 2005 memo on article 16 of the Convention Against Torture, the discussion focuses on the ‘shocks the conscience’ test given that ‘cruel, inhuman or degrading treatment’ in the DTA was defined in terms of the Fifth, Eighth and Fourteenth Amendments.
Why the discussion about conditions of confinement rather than ‘enhanced interrogation techniques’? The May 2009 New York Times story referred to earlier states that the the CIA had stopped waterboarding after March 2003, and the CIA’s use of ‘enhanced interrogation techniques’ had ceased in 2005. So, by the time of these two memos, the CIA was not using its ‘enhanced interrogation techniques’, but may still have been holding detainees at various black sites at the end of August 2006. At the beginning of September, after a series of meetings that took place over the summer of 2006, President Bush announced that 14 ‘high value detainees’ had been transferred to Guantanamo, and that this had emptied out the CIA’s prisons. Whether the black sites still held detainees on 31 August 2006 is unclear (to my knowledge) given the uncertainty as to exactly when the transfer of the 14 took place and the lack of other sources on whether other detainees may still have been held at black sites.
According to the same New York Times story, Vice President Cheney and certain CIA officials took steps to reinstitute the CIA’s torture program. And so Steven Bradbury went back to work in late 2006 to work on a memo. Once again, he delivered:
Early drafts of the memorandum, circulated through the White House, the C.I.A. and the State Department, shocked some officials. Just months after the Supreme Court had declared that the Geneva Convention applied to Al Qaeda, the new Bradbury memorandum gave its blessing to almost every technique, except waterboarding, that the C.I.A. had used since 2002.
This third document, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees (20 July 2007) is, indeed, pretty shocking (for an analysis of this memo, see Deborah Pearlstein’s post here). This memo should be read in conjunction with Executive Order 13440, which reauthorised the CIA program the very same day, subject to certain limitations – several of which Bradbury had concluded did not prohibit the CIA from employing six ‘enhanced interrogation techniques’. (Subsequent to July 2007, three short documents (dated 23 August 2007, 6 November 2007, 7 November 2007) from Bradbury to an unnamed Associate General Counsel of the CIA affirm the legality of extended periods of sleep deprivation in the course of an interrogation of unknown detainee(s), suggesting that at least one detainee was being coercively interrogated by the CIA after July 2007.)
In some ways the 79 page Bradbury memo of July 2007 is more remarkable than the Yoo/Bybee memo of 2002. As noted earlier, Bradbury didn’t have the luxury of relying on John Yoo’s iconoclastic theories of executive power, nor his loose analogies to the law of self-defence. Moreover, Bradbury had new laws (notably the DTA) and adverse court decisions (Hamdan) to contend with. And yet, he managed to come to the conclusion that the CIA could basically do what it had been doing in the past, minus waterboarding. This memo truly deserves to be up -or is it down?- there with the original August 2002 Yoo/Bybee memo in the Pantheon of bad legal advice.
September 21, 2009 at 5:30 pm
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Responses (2)
Patrick S. O'Donnell - September 21, 2009 at 10:37 pm
Lots of important stuff here, and thanks for all the links, many of which I’ve yet to go through.
I just finished Cole’s piece in the NYRB and I quote here from the conclusion:
“At its best, law is about seeking justice, regulating state power, respecting human dignity, and protecting the vulnerable. Law at its worst treats legal doctrine as infinitely manipulable, capable of being twisted cynically in whatever direction serves the client’s desires. Had the OLC lawyers adhered to the former standard, they could have stopped the CIA abuses in their tracks. Instead, they used law not as a check on power but to facilitate brutality, deployed against captive human beings who had absolutely no other legal recourse.
In light of these actions, it is not enough to order a cessation of such tactics, and a limited investigation of CIA agents who may have gone beyond the OLC guidelines. Official recognition that the OLC guidelines were themselves illegal is essential if we are to uphold a decent standard of law. Official repudiation is also critical if we are to regain respect around the world for the United States as a law-abiding nation, and if we hope to build meaningful safeguards against this kind of descent into cruelty happening again.
Moreover, this is not just a matter of what’s right from the standpoint of morality, history, or foreign relations. The United States is legally bound by the Convention Against Torture to submit any case alleging torture by a person within its jurisdiction “to its competent authorities for the purpose of prosecution.” President Obama and Attorney General Holder have both stated that waterboarding is torture. Accordingly, the United States is legally obligated to investigate not merely those CIA interrogators who went beyond waterboarding, but the lawyers and Cabinet officers who authorized waterboarding and other torture tactics in the first place.
The fact that such an investigation would be divisive, or might divert attention from President Obama’s other priorities, is not an excuse for failing to fulfill this legal obligation, and not a justification for not prosecuting. The fact that a defendant has powerful allies does not warrant treating him more leniently. At the same time, prosecutors do have discretion not to bring charges for many reasons, and it would not be illegitimate to decline prosecution if a prosecutor concluded that it was not clear beyond a reasonable doubt that the lawyers and officials intended to violate the law.
But surely it is premature to make such judgments. All the facts are still not known. And even if prosecution were not warranted, it is still critical that there be some form of official acknowledgment of wrongdoing. The least President Obama should do, therefore, is to appoint an independent, nonpartisan commission of distinguished citizens, along the lines of the 9/11 Commission, to investigate and assess responsibility for the United States’ adoption of coercive interrogation policies.
Only such a commission has the possibility of rising above the partisan wrangling that any attempt to hold accountable high-level officials of the prior administration is certain to set off. The facts that emerge should point to the appropriate response—whether a congressional resolution, disbarment proceedings against the lawyers, civil actions for money damages, or criminal prosecutions. Absent a reckoning for those responsible for making torture and cruel, inhuman, and degrading treatment official US policy, the United States’ commitment to the rule of law will remain a hollow shell—a commitment to be honored only when it is not inconvenient or impolitic to do so.”
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I’m curious as to how many law professors would concur with these remarks in toto. I’m not so sure about the “premature judgment” assessment given the abundant evidence to date that the OLC lawyers did indeed facilitate torture by giving it an utterly disingenuous and untenable legal gloss and sanction (exemplifying, as Cole says, ‘law at its worst’), while some of the highest public officials in our country, including both the President and Vice President, appear to have directed them to do so, at least when not turning a blind eye to what was happening under their watch.
Mike Zimmer - September 22, 2009 at 7:12 am
Having read Cole’s article, I think the cautionary element of his conclusion is there to help convince people who might not be as convinced as Patrick O’Donnell about what happened. Cole’s article, in my mind, is an overwhelming description of wrongful conduct and so I agree with Mr. O’Donnell.
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