Use the Rule of Law to End the Lawlessness

Four more Bush era memos authorizing the use of torture on detainees held by the US in the "war on terror" were released yesterday by the Obama administration. Download the memos here. Before the documents were distributed, only one of which was redacted to any real measure (taking out mentions of agents who participated in the inhuman and degrading behaviors), Obama differentiated between the agents who did the dirty work, and it was disgusting, and the officials who promoted and authorized it:

According to the New York Times: "Mr. Obama said that C.I.A. officers who were acting on the Justice Department’s legal advice would not be prosecuted, but he left open the possibility that anyone who acted without legal authorization could still face criminal penalties. He did not address whether lawyers who authorized the use of the interrogation techniques should face some kind of penalty."

Reading through one of the memos yesterday, written by now federal appeals court judge Jay Bybee, I was horrified at the detailed descriptions of the techniques--walling, sleep deprivation, stress positions, slapping, confinement in small cages, use of insects, and of course, waterboarding. That the Office of Legal Counsel was hijacked to write particularized authorizations for the use of inhuman and degrading interrogation techniques is evidence enough of the abuse of authority conducted by Dick Cheney, David Addington, Alberto Gonzales, Donald Rumsfeld, at a minimum. The role of George Bush himself is less clear.

Consider the Bybee memo on sleep deprivation, which held that it wasn't torture to keep Abu Zubaydah, an allegedly high-ranking al Qaeda member (but he wasn't and they knew he wasn't) awake, so long as it didn't last for more than eleven days: Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual's ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

One memo admits that the technique of waterboarding was used too often and too violently: Waterboarding was used “with far greater frequency than initially indicated” and with “large volumes of water” rather than the small quantities in the rules, one memo says, citing a 2004 report by the C.I.A.’s inspector general.

Immediately Senator Patrick Leahy called for a full investigation. America needs more. We need investigations and prosecutions of the principals who authorized and promoted the use of torture. I agree that the agents themselves shouldn't be prosecuted; they should lose their jobs, however. We don't need those kinds of men and women working for our country. But the officials responsible for ordering the abuses, well, they deserve the full force of the rule of law, which they denied to others, in search of the truth.

Promises, Promises

Pennsylvania Senator Arlen Specter now backs Obama nominee for Attorney General Eric Holder, after questioning his independence, citing, among other things, his role in the Clinton administration midnight pardon of Marc Rich. Marc Rich was a fugitive, and his former wife, Denise Rich, was pouring money into the Clinton Library and Democratic National Committee.

Specter, in his criticism of Holder, wondered out loud if he would be merely another Alberto Gonzales, Bush's White House counsel who moved over to Justice and seemed to be the puppet of Karl Rove and Dick Cheney no matter where he was located.

Here's what Specter promised: "After our recent experience with Attorney General Gonzales, it is imperative that the Attorney General undertake and effectuate that responsibility of independence. Mr. Gonzales left office accused of politicizing the Justice Department, failing to restrain Executive overreaching, and being less than forthcoming with Congress …

"I am convinced that many of Attorney General Gonzales’ missteps were caused by his eagerness to please the White House. Similarly, when Mr. Holder was serving as DAG to President Clinton, some of his actions raised concerns about his ability to maintain his independence from the president."

On the same day Specter published a letter in the Philadelphia Inquirer, again promising tough questions, Specter agreed not to filibuster Holder's nomination, and announced that he would vote for him as the next Attorney General.

According to a post on talkingpointsmemo.com, there were enough assurances from Holder that there would be no prosecutions of intelligence officers for use of torture in interrogating suspects in the "war on terror."

"The gist of" Holder's stance on the issue, "is that if you have an authoritative legal opinion, that's a defense in terms of mens rea, of intent. That's a broad generalization. I don't think you can go any further than that until you examine the specific facts of a case."

"[There may be] an opinion that allows an interrogator to go so far, and the conduct [in question] vastly exceeds that," Specter added, referring to the 2002 "Bybee memo" on torture that was later repudiated by the Bush DoJ. "It's really going to be fact-specific."

Prosecutions of the Bush administration officials who authorized and rationalized the use of torture on terrorism suspects should go forward. The White House influenced the supposed authoritative legal opinions coming out of the Office of Legal Counsel on the legality of excluding from domestic and international law the harsh and brutal treatment, amounting to torture, of terrorism suspects. Both Cheney and now Gonzales are using the same talking points: they have no liability because they acted on the basis of these legal memoranda, authored by Jay Bybee, now a federal judge and John Yoo, back as a Constitutional Law professor at US Berkeley. There is evidence, however, of David Addington's hand in these memos, which means that they were not independently authored.

America's stature in the world and the safety of our military personnel when captured by enemy forces depends on our repudiating the Bush era methods. Will we have the courage to do so?

Propublica.org published a listing of the memoranda that came out of the Office of Legal Counsel, and the ACLU is calling for the Obama administration to release to the public all of the memos so that they will become part of the public record.