Legal Scholars Criticize Torture Memos notes a general consensus among expert readers that the Torture Memos were so one-sided as to be incompetent, misstated basic concepts of criminal law, and misread our international obligations.
But don't worry, one of the lead authors is a court of appeals judge, and all the others still have their jobs! (At least until January.)
If you want to know what I sound like, you can hear a Real Audio or MP3 of an interview on CounterSpin: The Radio Show of Fairness. The show is also being broadcast on 130+ stations around the country at various times in the next week. (Update: more stations.) The family can hear it on WPFW / 89.3 FM next Thurs. at 11:00 am. Alas, there's no station playing it here in Miami…
One objective of the Bush Administration's modified limited hangout on the Torture Memos and the accompanying partial data dump, has been to sell the voter, and the chattering classes, the story that while some lower-down officials were having philosophical discussions about torture, none of this was ever reflected in the actual orders given by higher ups.
There are a large number of reasons to be more than a little wary about this spin on the story.
First, there are the obvious gaps in the story provided by the Administration — less and less information about the orders given by higher-ups as we get closer to the present day, the period in which administration desperation about events in Iraq could only have increased.
Second, there is the absence of any information about the instructions to the CIA at any time.
Third, there is the bureaucratic reality that the vast number of memos and working groups were not the result of spontaneous organizational combustion. People very close to the top asked for those. We know Rumsfeld and Gonzales did; we don't know how much they consulted with their boss, and he's having memory problems on the subject of torture.
Fourth, we know that the proponents of torture were not just philosophizing, or casting about for policy options, or presenting balanced options to their bosses, but rather were so intent on getting their way that they ruthlessly cut their bureaucratic opponents out of the loop.
According to today's Washington Post, in January 2002, the State Department Legal Advisor — one of the higher ranking lawyers in government, and traditionally an authoritative interpreter of existing treaties within the executive branch — opined that the Justice Department approach to the torture issue and to the Geneva Conventions was
“seriously flawed” and its reasoning was “incorrect as well as incomplete.” Justice's arguments were “contrary to the official position of the United States, the United Nations and all other states that have considered the issue,” Taft said.
That letter somehow didn't get into this week's data dump. Nor did the reaction from Justice and Defense: they started trying to exclude the weak-livered folk from State from meeetings.
One result of the rancorous debate, according to participants, was that Yoo, Attorney General John D. Ashcroft and senior civilians at the Pentagon no longer sought to include the State Department or the Joint Staff in deliberations about the precise protections afforded to detainees by the Geneva Conventions.
For example, the officials said, a 50-page Justice Department memo in August 2002 about the meaning of various anti-torture laws and treaties was not discussed or shared with the Joint Chiefs or the State Department. It was drafted by Justice for the CIA and sent directly to the White House.
(I happened to be talking to a mid-level foreign service officer, who is not a lawyer, last week and he expressed his disgust that the US government had, for the first time, interpreted treaties without even consulting the state department.)
These actions are consistent with a picture of an administration that sought a way to use, and intended to use, violence to question people. It is not airtight proof, and one hopes they pulled back from the brink…but at the very least there are many questions left to answered.
Just spotted in the Washington Post, Document On Prison Tactics Disavowed :
In a highly unusual repudiation of its department's own work, a senior Justice official and two other high-ranking lawyers said that all legal advice rendered by the department's Office of Legal Counsel on the subject of interrogations will be reviewed.
Guess that means those old legal opinions are inoperative now. It's about time. (Don't suppose Judge Bybee will be asked to resign do you? Nah.)
It's unclear from the Post article whether the royalist theory of Presidential power, endorsed by Bush himself, is also being disavowed, but I'd say it going to remain part of Administration doctrine or they wouldn't have released a memo Bush signed approving of it.
Also,
Gonzales … refused to comment on techniques used by the CIA, beyond saying that they “are lawful and do not constitute torture.” He also would not discuss the president's involvement in the deliberations.
A separate Post article notes that,
In December 2002, as Pentagon officials were trying to get detainees to offer more useful information about al Qaeda, Rumsfeld approved a variety of techniques, such as stripping prisoners to humiliate them, using dogs to scare them and employing stress positions to wear them down, the documents show. The tactics also included using light and sound assaults, shaving facial and head hair and taking away religious items.
Pentagon officials say most of the techniques were never used, and a Pentagon working group recommended that Rumsfeld roll back these methods. In a memo to the defense secretary in March 2003, the group wrote: “When assessing exceptional interrogation techniques, consideration should be given to the possible adverse affects on U.S. Armed Forces culture and self-image, which at times in the past may have suffered due to perceived law of war violations.”
A third Post article, which sounds awfully like White House talking points, suggests that liability concerns about the Torture Act, and especially the fear that anything less than a Presidential permission slip might open the door to prosecutions, drove Ashcroft to urge Bush to allow more violence than State or military lawyers wanted. Why Ashcroft didn't trust the troops to obey the law, and wasn't willing to see the bad apples tried, is not made clear in this recitation of talking points.
Are we really expected to believe the Iraq atrocities, and the Administration climate which circumstantially appears to have enabled it, was caused by….an absence of tort reform?
(Actually, on reflection, that's unfair: the legal action would have been criminal prosecution, not civil. So it was a real fear of US Attorneys?)
This evening the White House released the text of an order signed by President Bush on Feb. 7, 2002, regarding the treatment of al-Qaida and Taliban detainees.
This Bush order applies to the Afghanistan Taliban, and to alleged al-Qaida members in Iraq and worldwide; it says they don't have rights, but doesn't say that they should be tortured; rather it says they should be treated “humanely” and that they should be given Geneva-like privileges when not too inconvenient to do so.
The order accepts the Royalist theory of Presidential power, but says it declines to apply it: “I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.”
al-Qaida and Taliban fighters are claimed to all be outside the Geneva 3 framework (POWs) regardless of citizenship or circumstances. [And presumably it's possible to tell who is al-Qaida and who isn't just by looking at them?]
al-Qaida members are claimed be outside Geneva 4 (protection of civilians) regardless of citizenship beause they are “armed combatants” (even when not carrying weapons?).
The key command: “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”
On its own, this reads as an instruction to be humane at all times, and to follow Geneva when not too inconvenient. Whether this complies with international law or not, it does not read as a license to torture, which is presumably why the White House is releasing it. Note, however, that this order would, for example, be a license to create “ghost” detainees from among the Taliban and al-Qaida (but not other Iraqis).
Note also what's not there. For example, nothing in this memo seems directed to the CIA, just to the military. I wonder if there's a separate order for the CIA with more … flexibility?
It's also important to keep the confusing timeline straight. The OLC torture memo was delivered in August 2002, i.e. several months after this order. Thus, it is clear that this command, in Feb. 2002, to be “humane” was not the last word on the subject in the minds of all policy makers, including the President's closest advisors such as his Legal Counsel. And we know that the Walker Group was still chewing on the torture question in March 2003, although we don't know what if anything came of it.
In short, we don't know if this memo was ever countermanded, or amended, whether it applied to the CIA, or indeed what if anything ultimately resulted from subsequent advice to Bush that he could allow great physical pain to be applied during questioning of detainees. We do know, however, that as early as February 2002, in this memo, Bush had signed on to the dangerous theory of nearly unlimited Presidential power that informed the torture memos. We also know that in those months after this memo issued, many people around Bush were recommending, or prepared to recommend, that inhumane conduct was legal and justified.
UPDATE: The New York Times reports
White House counsel, Alberto R. Gonzales, told reporters on Tuesday that Mr. Bush never considered more aggressive options set out by administration lawyers, including those in an August 2002 Justice Department memo that appeared to offer a permissive definition of torture.
Full text of the Feb. 7, 2002 Bush order below.
Just thought I should mention that last week I signed the Law Professor's Iraq Letter. Its concluding paragraphs ask Congress to:
(1) assess responsibility for the abuses that have taken place, identifying the officials at all levels who must be held accountable for enabling these abuses to occur and for the failure to investigate them, and determining what sanctions, including impeachment and removal from office of any civil officer of the United States responsible, may be appropriate;
(2) decide whether the U.S. should have an official policy of coercion in connection with interrogation, and if so what form it should take as well as what safeguards it should include to protect against abuses in violation of the policy.
There were about 500 signatories, almost all law professors. I'm sure they would have had more if there had been more time to organize signatures or if were not the summer vacation season.
Jotwell Blenderlaw