‘Holy Hell’ Over Torture Memos

A fierce internal battle within the White House over the disclosure of internal Justice Department interrogation memos is shaping up as a major test of the Obama administration's commitment to opening up government files about Bush-era counterterrorism policy.

As reported by NEWSWEEK, the White House last month had accepted a recommendation from Attorney General Eric Holder to declassify and publicly release three 2005 memos that graphically describe harsh interrogation techniques approved for the CIA to use against Al Qaeda suspects. But after the story, U.S. intelligence officials, led by senior national-security aide John Brennan, mounted an intense campaign to get the decision reversed, according to a senior administration official familiar with the debate. "Holy hell has broken loose over this," said the official, who asked not to be identified because of political sensitivities.

Brennan is a former senior CIA official who was once considered by Obama for agency director but withdrew his name late last year after public criticism that he was too close to past officials involved in Bush administration decisions. Brennan, who now oversees intelligence issues at the National Security Council, argued that release of the memos could embarrass foreign intelligence services who cooperated with the CIA, either by participating in overseas "extraordinary renditions" of high-level detainees or housing them in overseas "black site" prisons.

Brennan succeeded in persuading CIA Director Leon Panetta to become "engaged" in his efforts to block release, according to the senior official. Their joint arguments stalled plans to declassify the memos even though White House counsel Gregory Craig had already signed off on Holder's recommendation that they should be disclosed, according to an official and another government source familiar with the debate. No final decision has been made, and it is likely Obama will have to resolve the matter, according to the sources who spoke to NEWSWEEK.

The continued internal debate explains the Justice Department's decision late Thursday to ask a federal judge for another two-week delay (until April 16) to file a final response in a Freedom of Information Act lawsuit by the American Civil Liberties Union seeking the release of the memos. The ACLU agreed to the two-week delay only after Justice officials represented that "high-level Government officials will consider for possible release" the three 2005 memos as well as another Aug. 1, 2002, memo on torture, that has long been sought by congressional committees and members of Congress, according to a motion filed by Justice lawyers with U.S. Judge Alvin K. Hellerstein in New York, who is overseeing the case.

The 2002 memo, written by former Justice lawyers Jay Bybee and John Yoo, concluded that waterboarding and other harsh interrogation techniques could be used against Qaeda suspects without violating a federal law that prohibits torture. That memo was publicly withdrawn by the Justice Department in 2004 after its existence became publicly known and sparked a public controversy. But a new set of Justice lawyers—led by Steven Bradbury, the newly installed chief of the department's Office of Legal Counsel—later secretly authored additional memos in the spring of 2005 that essentially approved the same techniques, permitting the agency to barrage terror suspects with a combination of physical and psychological tactics, including head-slapping and frigid temperatures, according to a 2007 New York Times account. Those memos concluded that the harsh interrogation techniques used by the CIA would not violate Geneva Conventions restrictions on "cruel, inhuman and degrading" treatment of prisoners.

The internal controversy over the memos is viewed as especially significant in light of the larger debate over whether there should be "accountability" for Bush-era tactics in the war on terror, including calls in Congress for a "truth commission" to investigate the matter. Until now, that debate has been cramped by the fact that most of the key material—including those that describe precisely what tactics were used by the CIA in interrogations and what happened to high-level suspects in U.S. custody—has been classified, making it at least theoretically a federal crime for officials with direct knowledge of these issues to publicly discuss them.

If the Justice memos were to be declassified, it would free up a host of former officials to talk about precisely what took place during White House and Justice Department meetings over the issue of interrogations. If the White House were to overrule Holder and side with Brennan and Panetta, it could essentially shut the door on attempts to have a full public airing of these issues, according to human-rights activists, lawyers and others who have followed the debate.

"It is our goal to release [Office of Legal Counsel] opinions to the maximum extent possible, while still protecting national security information and ensuring robust executive branch decision-making," said Tracy Schmaler, a Justice Department spokeswoman, in a statement. "We continue to review OLC memos for possible release and to consult with the departments and agencies to whom OLC provides legal advice about the appropriate path forward with respect to other memos."

Jameel Jaffer, an ACLU lawyer who is overseeing the litigation, said he still remains hopeful that the Justice Department will release the memos later this month. He added, "This is arguably the most important test thus far of the Obama administration's commitment to transparency."