Some of the most aggressive positions on executive authority taken during the Bush Administration are those found in the infamous “Torture Memo.” We now know that this memo, dated August 1, 2002, provided the legal underpinnings for aggressive interrogation practices, including waterboarding, of a number of detainees. After a series of questionable interpretations of statutory law, the memo concludes that the president as commander-in-chief can sanction practices that violate the Convention Against Torture as well as US statutory law prohibiting torture. When this memo was leaked to the press, the Bush Administration withdrew it, but not before the legal damage had been done. The role of Office of Legal Counsel lawyers, the Vice President’s office, and others, have been the subject of numerous congressional hearings, including a series of five focused on them held by the House Judiciary Committee during the 110th Congress.
President Obama has repudiated interrogation practices that the Torture Memo held to be legally permissible, and his expressed preference for moving forward rather than engaging in recriminations argues for closing the door on this chapter in the war on terror. Nonetheless, a question lurking in the controversy over the Bush Administration’s interrogation policies has been whether the legal authorization of these practices justified disciplinary or other action against the lawyers who drafted these memos. Now, Mike Isikoff of Newsweek is reporting that the Office of Professional Responsibility has written a draft report critical of the performance of OLC lawyers in drafting the memo. This report, which was circulated to Attorney General Mukasey sometime prior to his leaving office, looks like it will land on Attorney General Eric Holder’s desk. When it does, it will force the Department of Justice to confront an uncomfortable question: was the legal analysis deliberately shaped to provide legal cover for aggressive interrogation practices? If the evidence suggests that possibility, it will become more difficult to defend the Torture Memo as a misguided, yet good faith, interpretation of the law – and the chapter door will have to remain open a little longer.