The Torture Loophole

New documents on enhanced interrogation techniques suggests the Bush administration did not seek proper legal clearance to grill detainees.

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.”

These new revelations also raise several doubts about the Bush administration’s narrative of events. Former Vice President Cheney and former national security adviser Condoleezza Rice have insisted that they and the CIA never acted without formal and specific approvals from the OLC. Bush officials have repeatedly spoken of how, in implementing the CIA program, they proceeded with legal authority from the OLC. As Cheney told CBS’ Face the Nation on May 10, 2009: “We decided that we needed some enhanced techniques. So we went to the Justice Department. . . . And specifically, what we got from the Office of Legal Counsel were legal memos that laid out what is appropriate and what’s not appropriate, in light of our international commitments. If we had been about torture, we wouldn’t have wasted our time going to the Justice Department.” Even if the legal opinions are subsequently proved wrong, some Bush supporters have argued, no one should be punished for relying on them in good faith.

But now it turns out that in some interrogation sessions—even those involving waterboarding—the CIA and White House may have had no formal legal authorization. With the release of the new documents, it seems that later OLC opinions were drafted primarily to provide ex post facto legal justifications for torture that had already been implemented without authorization.

There is therefore a very real possibility that high-level Bush administration officials are implicated in unauthorized interrogations of detainees--including CIA officials who facilitated and oversaw the key post-Zubaydah interrogations in late 2002 and early 2003, and NSC principals, including Dick Cheney, who oversaw the expansion of EITs and provided the after-the-fact NSC sign-offs for the expansion in 2003 and again in 2005. Perhaps it is just this threat which leads Cheney to so vociferously defend the CIA tactics. If so, it calls into question the personal motives of that defense.

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The new documents may leave the Attorney General Holder and his special prosecutor, John Durham, no choice but to expand their investigations beyond CIA rank-and-file officers to the top echelons of the CIA and even, perhaps, to the Bush White House.

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.