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The Torture Loophole
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New documents on enhanced interrogation techniques suggest the Bush administration did not seek proper legal clearance to grill detainees.
In mid-2002, the Justice Department’s Office of Legal Counsel issued an opinion explicitly approving the use of waterboarding and other “Enhanced Interrogation Techniques” on Abu Zubaydah, a suspected al Qaeda operative captured in Pakistan. Close observers of the controversial tactics were watching, when Justice released a trove of previously secret government documents Aug. 24, for more of the same: clear guidance from OLC, in the form of additional letters or memos, allowing the expansion of the use of harsh interrogation tactics to other CIA detainees.
But, judging from the Justice Department’s disclosures, the CIA appears to have used EITs to interrogate several detainees grilled after Zubaydah—including Ramzi Bin al Shibh, Abd al-Nashiri, and Khalid Sheikh Mohammad—without obtaining the required legal authorization. In June 2003, the CIA produced a set of unsigned “bullet points,” supposedly “extending” or “expanding” the Zubaydah approval for the other detainees. But several detainees had already been interrogated using the harsh techniques by then. John Yoo, a deputy with OLC at the time, consulted with the CIA on these bullet points. But, as Marcy Wheeler of emptywheel points out, Yoo did not have the legal authority to represent the final view of the Justice Department office. Therefore, the bullet points did not represent the official legal opinion of the department.
Attorney General Holder has said publicly that his department would not prosecute those who followed the Bush administration’s legal guidance “in good faith.” But all bets may be off if the legal authority to interrogate detainees other than Zubaydah was murky or non-existent, as the evidence made public thus far suggests.
The apparent lack of clear legal authority for each of the subsequent interrogations could be an issue of interest to John Durham, the federal prosecutor appointed last week by Attorney General Eric Holder to investigate the CIA’s handling of the detainee grillings—a decision which drew fire from former Vice President Dick Cheney over the weekend. Holder has said publicly that his department would not prosecute those who followed the Bush administration’s legal guidance “in good faith.” But all bets may be off if the legal authority to interrogate detainees other than Zubaydah was murky or nonexistent, as the evidence made public thus far suggests.
The flimsy nature of Yoo’s advice was made clear when Jack Goldsmith, who took over OLC in October 2003, informed the CIA that the lawyer’s views did not bear the imprimatur of the office, which represents the official legal opinion of the executive branch and is sometimes referred to as “the president’s law firm.” In a key letter to the CIA in June 2004, Goldsmith wrote that the bullet points “did not and do not represent an opinion or a statement of the views of this Office.” And in an earlier letter on May 27, 2004 to the CIA General Counsel, Goldsmith wrote: “It is my understanding that this office subsequently agreed that the same legal principles, subject to the same factual assumptions and limitations, could be applied for interrogations of persons other than the specific individuals addressed in that August 2002 opinion [Abu Zubaydah]. Our initial review of the Inspector General’s Report raises the possibility that, at least in some instances and particularly early in the program, the actual practice may not have been congruent with all of these assumptions and limitations.”
At the time, the CIA had stopped using waterboarding, for reasons that remain somewhat unclear. But in the June 2004 letter, Goldsmith warned against resuming the practice, suggesting that if the agency had to use the “other nine techniques” approved for Zubaydah, it would need to make sure that its assumptions and facts matched those of the Zubaydah case. The CIA, Goldsmith wrote, should “review the steps you have already taken to ensure that in actual practice any use of those techniques adheres closely to the assumptions and limitations stated in our opinion of August 2002.”
Goldsmith resigned soon thereafter, mainly because of his lack of popularity in the administration. Another key OLC document shows that the Attorney General’s office provided the National Security Council with some sort of verbal sign-off of the interpretation in the “bullet points” in July 2004, well over a year after KSM’s capture and almost two years after Ramzi Bin al Shibh’s. This is particularly interesting because we now know that a year earlier, at a key NSC meeting in July 2003 (attended by Vice President Dick Cheney), the CIA briefed NSC on the expansion of the use of the EITs, and the NSC approved it. The NSC, it would appear, acted first, approving the expansion of EITs in 2003, and then received the legal authority a year later. A more formal OLC opinion applicable to the other post-Zubaydah detainees was not promulgated until May 2005, at which point numerous CIA interrogations had been going on for over two years.
These after-the-fact authorizations cannot be construed to cover the earlier conduct. The whole concept of the authorizations was to provide tight legal oversight so that the CIA did not exceed the narrow confines of the law. In any case, the fact that authorizations came after the EITs were actually implemented, not before, suggests that the authorization were not objective interpretations of the law—and would seem to strain the definition of “good faith.”
John Talks Joe
Lloyd Grove is editor at large for The Daily Beast. He is also a frequent contributor to New York magazine and was a contributing editor for Condé Nast Portfolio. He wrote a gossip column for the New York Daily News from 2003 to 2006. Prior to that, he wrote the Reliable Source column for the Washington Post, where he spent 23 years covering politics, the media, and other subjects.
The Right Dumps Carrie
Jacob Bernstein is a senior reporter at The Daily Beast. Previously, he was a features writer at WWD and W Magazine. He has also written for New York magazine, Paper, and The Huffington Post.
What's Missing from the CIA Docs
John Sifton is a private investigator and attorney based in New York City. His firm, One World Research, carries out research for law firms and human rights groups, including in South Asia, the Middle East and North Africa. He has conducted extensive investigations into the CIA interrogation and detention program.
Cheney's Big Torture Speech
John Sifton is a private investigator and attorney based in New York City. His firm, One World Research, carries out research for law firms and human rights groups, including in South Asia, the Middle East and North Africa. He has conducted extensive investigations into the CIA interrogation and detention program.
The Bush Administration Homicides
John Sifton is a private investigator and attorney based in New York City. His firm, One World Research, carries out research for law firms and human rights groups, including in South Asia, the Middle East and North Africa. He has conducted extensive investigations into the CIA interrogation and detention program.
You would think
true patriots would be
sickened by that
fact that we are not punishing
the people who authorized torture.
Whats with our country
we are better than this.
Highly interesting that the documents revealed by the ACLU lawsuit shows,without question, that Democratic office holders (Pelosi, Reid, Kerry & Hillary Clinton) all lied when they claimed no knowledge of the torture programs. So let's re-run all those CNN & MEET THE PRESS interviews with these liars and ask them why they wasted America's time and treasure pretending they never knew what they were voting for. What an outrage...and yet the national media is ignoring it...protecting the liars but not protecting the country or our soldiers. Pitiful left-wing dishonesty.
All I see/hear when people make blind categorizations of an entire section of the political spectrum is "I'm too ignorant and lazy to form a considered opinion."
This is a disingenuous argument. The Democrats had no real power so don't pin this on them. Anyone who disagreed with this policy was called unpatriotic and Pelosi has said that she was lied to and Cheney told the CIA not to inform congress on plans setup assassination teams to target foreign leaders. Why is Dick Cheney so enraged about bringing "transparency" to those who went beyond what was allowed in the ERT? Maybe he knows something that we don't...
jpelhamtn: I find it highly interesting that you are so willing to believe the CIA report. The CIA is well know to be less than truthful with Congress.
For example, in 1992, George H. W. Bush pardoned three CIA officials who lied to Congress:
* Clair E. George, the former head of the Central Intelligence Agency's clandestine services, who was convicted of two felony charges of perjury and misleading Congress about both the contras and the Iran initiative -- crimes for which he faced up to five years in prison and $250,000 in fines.
* Duane R. Clarridge, the former head of the C.I.A.'s European division, who was awaiting trial on charges that he misled Congressional investigators about a missile shipment to Iran in 1985.
* Alan D. Fiers Jr., once a rising star with the agency, who had pleaded guilty in 1991 to withholding information about the contras from Congress.
Let's just say that with special prosecutor John Durham currently investigating CIA actions regarding torture, the CIA has every incentive to be less than forthcoming and to find ways to cover its collective ass.
@jpelhamtn,
That may be the most pathetic attempt to divert attention that I've ever seen. Congratulations on a new low.
Fine, Jepel. Send Pelosi, Reid, Kerry, and Clinton to jail too. But Cheney and Bush should be the first ones thrown in.
This is a rather childish argument. Let them off the hook or we will look at the other party. No one gets left off the hook. Ever. Go ahead, investigate everyone. Fine by me. It is the right thing to do. Period. But don't confuse statements made on MTP or CNN with testimony made under oath because the Cheney's alone would have 50 lies to answer for. Then there's Rumsfeld, Condi, Powell, Rove on and on. The lies on tv probably add up to the thousands on the GOP side. Even if you can count up 100 on the Dem side, it pales in comparison. And it's irrelevant to an investigation into illegal activity.
You bring up a good point. Since Congress specifically signed off on the EIT procedures, it's only a matter of time before Senators Feinstein, Rockefeller, et al, are hiring personal counsel. If Holder is going to conduct a non-partisan investigation, he needs to include Congress. There are many in Congress who, immediately after 9/11, not only authorized these procedures but gave the ok for more aggressive interrogations if needed.
I would ask the same thing of liberals. Where were you when Clinton and Carter were doing the same thing. Since 1946 to 2001 the "School of the Americas" has trained more dictators and death squads paid for by US tax payers. Now SOA is renamed " Western Hemishere Institute for Security Cooperation" but not yet disband by the current adminitration. Renditions that sent people captured by the CIA or ,military to other countries to be tortured is still active under the Obama administration which is in violation of the UN Convention on Toture and a violation of Federal statue. Sending a missile from a drone into a home of a persumed enemy into a sovereign country is in a violation of article one of the UN Charter since the UN security council did not authorize such acts. The Obama administration is not innocent of violating laws or any of the other pass presidents. So if AG Holder wants to follow the letter of the law, both international and domestic, he would arrest all pass presidents and the current one. I doubt that will ever happen as it's well known " those who have the power make the rules."
Form my perspective, the real test of the use of any interrogation techniques is, would we want our people subjected to the same thing? If the answer is no, then we don't do it.
I agree with you Sergeant. And it's apparently coming from someone who actually knows.
Spot on, retired-army.
If you base it on Constitutional standards like right to trail by jury of peers and the Miranda act you have to withdraw all ou forces in Iraq and Afgahnistan and send in the FBI. The military fights war under the Geneva Convention and Army Field Manual which would violate our Federal rules of evidence in convicting civilians. AG Holder would have to release all those guys in GITMO especially the high value ones. I don't think the democrates are willing to pay the political price in the name of US civlian justice to non US citizens; they haven't so far.
Question---Why did we go to war, both with Iraq and terror?
Answer---Because they were willing to use tactics that we absolutely abhor, as a collective society, to harm innocent people in the name of their god/government/leaders.
If we lower ourselves to using the very techniques that we went to war for, we become them. There is nothing left to fight for once you become the same as the enemy.
No one wants to die, period. I certainly don't, and I don't want my family to die either. But if it's a choice between possibly dying and using torture against our captives, I have to choose the former.
Torture is, in my opinion, reserved for those timid souls who are so cowardly afraid of what they don't know they will do anything to find out what they want to know. We need to stand up as a society and proclaim that we are not animals, we do not use torture against people we hold in detention, and we will not tolerate those who do. Period.
Furthermore, the entire concept of a "War on Terror" is utterly ridiculous: you can't have a war on a military tactic. What's next if we get another Bush in office? "War on Foxholes!"
Don't know much about the history of the wonderful USA during war. There's the numerous genocide of native Americans. In the Philippine Insurrection whole villages were murdered including women and children. In WW2 the US interned hudreds of thousands of citizens without trail, it read peoples mail, directly targeted civilians in bombing cities of the enemy, shot captured enemy soldiers and threatened death and tortured spies to get info and cooperation. In Veitnam whole villages were moved and bombed. Suspected enemy captured were shot on the spot and dropped from helicopters for not giving up information. In the Cold War, death squads trained by the US military and CIA committed several atrocities accounting for hundreds of thousands of deaths. Remember it was Carter first who armed the Mujahadeen and encouraged their religious fanatism. The presidents during the times of the atrocities and human right violations are still alive yet the liberals only want just the Bush administration put in prison. Some liberals are foaming in their mouth with hate for Bush that they are willing to be selective in seeking justice.
What presidents? Roosevelt, Kennedy, Johnson, Nixon: they're all dead.
Just because some of them committed atrocities justifies all of them? We're not a willfully ignorant populace anymore - that went out with segregation and doctor-recommended cigarette brands.
Maybe Americans need to let go of the idea that we're "the good guys" or morally right until proven otherwise. Because evidently, even if we admit to doing something that we previously regarded as wrong when other countries do it, it is somehow justifiable when we do it.
I'm not saying that we shouldn't torture people. I'm just saying, that if we are going to torture people, lets just be honest with ourselves about what we are doing. It's better than looking silly while deluding ourselves with self-righteous hypocrisy.
This comment has been removed by The Daily Beast's editors.
Actually, we shouldn't torture people. It is never justified. Innocent people who are tortured will say anything to make the pain stop. Trained agents will resist, then lie to throw off their torturers. Torture isn't used to get important information, it is used to force people to say what you want them to say.
But you are right in that if we did torture people, we should admit to it. Enough with the 'enhanced interrogation' nonsense: It was torture.
It's true countries who are at peace are quick to judge those countries at war to be morally depraved such as the Western Europeans who now to accuse the US the same human rights violations they were doing during the Cold War. The Germans did renditions and shot Black September muslim prisoners, the French in Algiers and Tunisia, the Brits in Ireland and others who grabbed people they suspected as spies.
War is never so clean that our moral standing will not be tainted, just look at our greatest presidents. Lincoln suspended Habious Corpus. FDR imprisoned US citizens without trail, tapped peoples phones, read their mail, censored the media and threatened death to captured spies who didn't cooperate. Bush water boarded captured enemy for info to save american lives and listened into the coversation of a few americans suspected of talking to the enemy in another country then left office after finishing his term. If Lincoln is a great president for violating Habious and so is FDR for violating many Constitutional rights during war; I guess Bush is going to have a few schools named after him. Wait when Obama captures a high value target that refuses to talk, I doubt the man is going to tell his interregators to stop questioning the terrorist once he demands a lawyer by the fact that when CIA director Pineta was questioned during the Senate confirmation he confirmed the president has the option to order the use of IET in times of national emergency. The only difference is, this time the liberal media and the ACLU will keep its mouth shut.
Why do you love murders so ?
MaliciousDisorder: Why do you love to torture innocent Iraqi citizens so?
You do know that the Bush administration released over half of the "terrorists" held at Guantanamo Bay, don't you? I find it hard to believe that Bush / Cheney would release real terrorists.
Thank you.
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