Last Thursday, the Obama Administration ended the internal dispute about the release of additional memos regarding enhanced interrogation techniques by making public lightly redacted versions of four Office of Legal Counsel memoranda, one issued in 2002, the other three in May of 2005. Here is a highly selective summary of some of their more salient features.
- In the oldest of the memos, signed August 1, 2002, Jay Bybee, now a federal judge, approved enhanced techniques that might be used specifically in the interrogation of Abu Zubaydah. The memo was signed the same day as the notorious “torture memo” that was eventually withdrawn by the Department of Justice after its unauthorized disclosure and generated a public firestorm. We have long known of the existence of this just-released memo, and it contains few surprises. It does provide a detailed, antiseptic description of ten interrogation techniques, including waterboarding. The legal analysis here is quite sparse, because the legal template for deciding whether a technique was lawful had been established in the longer “torture memo” that accompanied this one. The body of this memo runs each of the ten techniques through that template and finds them all permissible.
- Two memos issued on the same day – May 10, 2005 – are remarkable in several ways. Although running a combined total of sixty-six pages, the memos address a quite narrow question, namely the application of 18 USC §§ 2340-2340A to specific techniques that might be used to interrogate “High Value Detainees.” Torture Memo junkies will recognize this as precisely the same question that OLC answered in its earlier, leaked-and-withdrawn August 1, 2002 Bybee Memo. (without the High Value Detainee qualifier.) Junkies will also recall that after the Department of Justice withdrew the Bybee Memo it issued a replacement on December 30, 2004 signed by Dan Levin. That memo revised portions of the legal analysis of the August, 2002 memo and entirely dropped the section of it that had proven most controversial – the section claiming that the President’s authority to interrogate prisoners could not be limited by duly enacted statutes. Notably, however, the Levin memo contained a footnote explicitly reaffirming the correctness of all prior advice given regarding the treatment of detainees. Footnote 8 of the 2004 Levin memo states:
While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.
- In other words, to the extent that enhanced interrogation techniques had been approved in the past by the Justice Department, these approvals continued to stand.
- The longer of the two May 10, 2005 memos extended both of the key features of the 2004 Levin memo: (1) The memo is entirely devoted to interpreting the reach of the statute. It pointedly disclaims any reliance on “any consideration of the President’s authority as Commander-in-Chief” or any other legal techniques to avoid potential culpability, such as application of the principles of necessity or self-defense. In both of these memos, the Office of Legal Counsel also consulted with the Criminal Division, something the authors of the earlier Bybee memo had apparently not done. In both cases, the Criminal Division concurred in OLC’s interpretation of the criminal statutes, 18 USC §§ 2340-2340A. (n. 31 in the longer of the May 10, 2005 memos). (2) The memo likewise ends up approving every technique that it was asked to examine, although it ponders a while over sleep deprivation and waterboarding as potentially capable of crossing the line. On the point of reaffirmation, the 2005 Memo is just as explicit as the 2004 Levin Memo was. In footnote 9, the longer of the two memos states:
In order to avoid any confusion in this extremely sensitive and important area …this memorandum confirms the conclusion of the [just-released August 1, 2002 Memo] that the use of these techniques on a particular high value al Qaeda detainee, subject to the limitations imposed herein, would not violate sections 2340-2340A. … The CIA has reviewed this memorandum and confirmed the accuracy of the descriptions and limitations.
- The larger of the May 10 memos also describes the enhanced techniques, and in even greater detail than had been done by the just-released August 1, 2002 memo addressing the interrogation of Zubyadah. It further describes the procedures through which the CIA deployed these enhanced techniques in thorough detail. Written CIA guidelines governed what was done all the way through, beginning with instructions for pre-interrogation medical and psychological examinations aimed at ensuring the detainees will not suffer severe physical or mental pain during the interrogations. We learn a good deal about the each individual technique, as well. For instance, for sleep deprivation – limited to no more than 180 hours, we are told, but seldom extended that long – individuals are stood upright, with hands and feet shackled. “If the detainee is clothed, he wears an adult diaper … If the detainee is wearing a diaper, it is checked regularly and changed as necessary. The use of the diaper is for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee, and it is not considered to be an interrogation technique.” (p.14).
- Note the possible relevance of these detailed descriptions to the recent DOJ decision not to prosecute CIA personnel who engaged in water boarding or other enhanced techniques: If CIA personnel were under detailed instructions as to the conditions, circumstances and limitations under which they were authorized to employ any specific technique, if those detailed instructions were followed, and if those detailed instructions had been explicitly subjected to thorough legal analysis and specifically found to satisfy the applicable legal standards, it would be extremely difficult, to say the least, subsequently to prosecute those personnel for violations of those legal standards.
- Although I have not put the two side by side for comparison, the extended legal analysis found in the longer of the two May 10 memos appears closely to track the analysis of the 2004 Levin Memo, which of course was already in the public domain. This seems to confirm the widespread suspicion that the internal debate over the release of these memos was not so much over the exposure of the Bush Administration’s legal analysis – that cat was already out of the bag – but instead over the exposure of the descriptions of the enhanced techniques and the procedures that implemented them. The last 18 pages of this memo applies the legal framework to each of the specific techniques, but once again we already knew how that story turns out, because we knew from 2004 Levin that prior legal advice had authorized these specific techniques, the contours of which had been exposed in prior reporting by journalists.
- The last of the four released memos, dated May 30, 2005, is from Steven Bradbury signed a memorandum for John Rizzo, Senior Deputy General Counsel, CIA, analyzing US obligations under Article 16 if the Convention Against Torture as applied to “enhanced interrogation techniques” that might be used against High Value Al Qaeda detainees.
- Article 16 provides that each signatory nation “shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.” The jurisdictional limitation means that the Article 16 obligation regarding cruel, inhuman or degrading treatment does not extend to CIA operations at “black sites” in other countries. (This territorial limitation does not apply to the Treaty’s obligations to prevent and criminalize acts of torture. However, the territorial limits on the reach of our domestic criminal law at the time we signed the CAT necessitated Congress enacting the anti-torture statute, 18 USC §§ 2340-2340A, to reach acts of torture by US nationals outside of US territory, in order to satisfy the treaty obligation that torture constitute a violation of domestic criminal law.) Now, out of an abundance of caution, the CIA asked DOJ to decide whether the enhanced techniques, which were found to be permissible under the anti-torture statute, would also pass muster under standards governing cruel, inhuman or degrading treatment. The May 30, 2005 Memo provides DOJ’s answer: yes. The May 30, 2005 interpreted the US obligation under Article 16 to be co-extensive with its obligation under the US Constitution to prohibit conduct that “shocks the conscience.” And, while concluding the enhanced techniques did not transgress the “shocks the conscience” standard, the Memo concedes that this is a “somewhat subjective test with only limited guidance from the Court.’ (p.25)
- Another item worth noting in the May 30 memo is the contribution it makes to on-going discussions of the “ticking time bomb” scenario, which poses the question whether even torture might be justified to extract information that would lead to preventing a ticking time bomb from exploding. In the May 30 Memo, we learn what happens when Jack Bauer meets government lawyers. Page 5 contains the following guidelines for when the CIA was prepared to contemplate water boarding a detainee. Under those guidelines waterboarding could only be used against a High Value Detainee (“foot soldiers” were not eligible) when the CIA had “credible intelligence that a terrorist attack is imminent,” as well as “substantial and credible indicators that the subject has actionable intelligence that can prevent, disrupt or delay this attack,” and “other interrogation methods have failed to elicit the information or CIA has clear indications that other … methods are unlikely to elicit the information within the perceived time limit for preventing an attack.” A little wordier than Jack would have been, but basically making the same call that Jack has made on numerous occasions.