OLC Torture Memos Declassified

The disclosure of four Bush-era Office of Legal Counsel opinions on interrogation and torture is likely to have significant political and perhaps legal consequences.  But their release is also a landmark in national security classification policy.

These OLC memos, released by the Justice Department yesterday, were among the most urgently sought and the most fiercely protected classified records of recent years.  They addressed fundamental questions of national policy and yet they were off limits to public review and discussion by virtue of their classification status.

“The interrogation techniques described in these memos have already been widely reported,” President Obama said in a statement explaining his decision to declassify the memos.  “Withholding these memos would only serve to deny facts that have been in the public domain for some time.”

But remarkably, this sensible view — that information which has reached the public domain should not remain classified — does not characterize or dictate classification policy.

“Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information,” according to Executive Order 12958, as amended.

Nor can judicial review reliably compel disclosure of such information.  In order to win declassification and disclosure of previously released information, a FOIA plaintiff must show that each of the following conditions is met: 1) the information previously released is as specific as the information that is being requested; 2) the information requested matches the information previously released; and 3) the information requested has been made public through an official and documented disclosure (Fitzgibbon v. CIA, D.C. Circuit, 1990).

The new release does not alter this non-disclosure policy, which lends credence to the statement of former CIA director Michael Hayden that the government could have successfully argued against disclosure of the OLC memos in court, as he favored.

But the four newly declassified memos are now themselves “an official and documented disclosure.”  This means that not only have their combined 124 pages been published (with limited redactions) but also that an obstacle to the release of a related body of legal and intelligence information has now been removed.  Such material can no longer legitimately remain classified.  Furthermore, the new release will also enable participants and other officials to speak publicly about the issues involved.

The memos are shocking in their calculated brutality and in their likely violation of categorical legal prohibitions against torture.  They are, as President Obama stated, evidence of a “dark and painful chapter in our history” involving practices that should “never take place again.”  But they also provide abundant food for thought as well as new insight into their authors’ thinking, and their predicament.

The authorization for coercive interrogation of al Qaeda operative Abu Zubaydah was predicated on the “certain” belief that “he is withholding information regarding terrorist networks in the United States… and information regarding plans to conduct attacks within the United States” and that “he refuses to divulge” the information.  Furthermore, there was an estimated threat level “equal to that which preceded the September 11 attacks.”  “This opinion is limited to these facts.  If these facts were to change, this advice would not necessarily apply.”  (“Interrogation of al Qaeda Operative” [pdf], August 1, 2002, at page 1).

In other words, it appears that the OLC authors proceeded not out of sadism or indifference, but out of desperation.

They recognized that under other circumstances (such as law enforcement), the coercive practices that they were authorizing could be thought to “shock the conscience.”  But they concluded that coercive interrogation by the CIA did not violate that standard since it was only being used where the detainee had “knowledge of imminent terrorist threats against the USA” and that it had already proved effective in producing “critical, actionable intelligence.” (“Application of U.S. Obligations Under Article 16″ [pdf], May 30, 2005, at pp. 3, 29ff).

The development of the OLC memos suggests that if torture is to be permanently abolished, alternatives to coercive interrogation that are at least as effective need to be identified, or else the occasional prospect of an “imminent terrorist threat” threatening thousands of lives must be accepted in principle as preferable to the extreme violations of human dignity authorized by OLC.

A couple of other points.  Both President Obama and Attorney General Holder noted that the OLC memos were released as a consequence of  ongoing litigation.  In other words, their release is thanks to the Freedom of Information Act lawsuit filed by the ACLU and its co-plaintiffs, and the resonance that the lawsuit found in the press, the blogosphere and the public.  Congressional oversight did not get the job done (despite a Senate Judiciary Committee subpoena for these records).  This reflects a significant and dangerous weakness on the part of Congress.

Yesterday, former CIA Director Michael Hayden told MSNBC that the CIA interrogation program “began life as a covert action.”  If that is true, it means that there should be a Presidential “finding” authorizing the program, and that such a finding should have been provided to Congressional overseers.  As a covert action, the program may also have entailed active deception.  It’s one more loose end that remains to be tied.

Michael Hayden and former Attorney General Michael Mukasey criticized the release of the OLC memos in “The President Ties His Own Hands on Terror,” Wall Street Journal, April 17.

The ACLU called for appointment of an independent prosecutor to investigate torture under the Bush Administration, in an April 16 release.

No Responses to “OLC Torture Memos Declassified”

  1. David Blum April 17, 2009 at 1:25 PM #

    ” . . . if torture is to be permanently abolished, alternatives to coercive interrogation that are at least as effective need to be identified, or else the occasional prospect of an ‘imminent terrorist threat’ threatening thousands of lives must be accepted in principle as preferable to the extreme violations of human dignity authorized by OLC.”

    The first possibility may be easier than it sounds, given the dubious effectiveness of torture as a method of obtaining true information. (Historically, torture has mostly been used to produce false statements–phony confessions, recanting of beliefs, etc.) But even if it turns out that torture can be effective at finding out true facts, as a citizen I strongly prefer the second option: accepting occasional danger in order to uphold a principle of right conduct. That’s called morality.

  2. George Smith April 18, 2009 at 12:54 PM #

    In other words, it appears that the OLC authors proceeded not out of sadism or indifference, but out of desperation.

    I agree, Steve, although I would call them panicked rather than desperate. We should have had stronger leaders and the nation’s reputation has suffered for it. Stronger men wouldn’t have lost their heads under pressure. A mainstream press and active Congress could have corrected this earlier but, it seems, they were short on character, too.

    My experience in the London ricin case told me torture doesn’t work and, indeed, can make a bad situation much worse. The British government’s lead informant was tortured into a confession in Algeria implicating a ring of terror poisoners in that country. And as a result, the ‘information’ he furnished could not be used in the trial. A jury then exonerated everyone accused of the ricin plot except for one bad man, who was put away permanently.

    However, long before the trial, the Bush administration had seized upon the London ricin ring as evidence of an al Qaeda network stretching from Iraq. And it was subsequently put into Colin Powell’s now infamously discredited presentation at the UN. Again, one more plank arrived at from ‘information’ gained after torturing.

    The result of the ricin trial and the public knowledge of what had actually happened was one of the larger causes of the British public becoming disillusioned with our war in Iraq.

    Anyway, another look is here.

  3. Dan April 18, 2009 at 6:48 PM #

    I think that the media attitude that all methods used are truly torture; and the acceptance of it from the media detracts from separating what techniques could be used in some situations but do not rise to the level of torture.

    Can we honestly say that techniques that are used on American soldiers in peacetime training, then used on the enemy are really torture? Is making a room warm or chilly really torture when the soldiers creating that enviroment sleep in tents that are just as hot?

    I have worked Special Operations for 25 years and, by definition, have been tortured countless times. Yet I re-enlisted time and again.

    What about a technique that does not provide any pain or suffering, but only the illusion of anguish. Is that torture? Threatening a captive with longer imprisonment, even if it is a bluff: Is that torture? Police in use that method all the time to get a suspect to confess.

    I think that whatever these psychologists did was a far cry from sadism.

  4. a knight April 19, 2009 at 12:39 AM #

    Dan,

    The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines and describes torture fairly well. The United States is a signatory to The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; with Declarations and Reservations.

    United States Constitution; Article VI.; Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    The UN Convention against Torture is a treaty made “under the Authority of the United States”, therefore; it is “the supreme Law of the Land”. This much is absolutely clear. What is left is to parse through the US Declarations and Reservations, and make your own judgment.

    In all honesty, I’m a fast aging man, who was once long ago a conscript chopper doc. I would have never enlisted, and served one tour in SE Asia. Still, I freely swore my oath, and take my freely sworn oaths seriously. Thoughts along these lines often lead into an incomprehensibly mad darkness. I’m not here to lead; we all make our own decisions, or we are not free; but you know the drill soldier: “against all enemies, foreign and domestic”.

  5. George Smith April 19, 2009 at 5:35 PM #

    I think that the media attitude that all methods used are truly torture

    This is a bit too general. The front page story in the Los Angeles Times didn’t even employ the word ‘torture’ until the very end of the story. And it was used delivered by another DOJ legal memo authored during the Bush administration. In fact, the subhed for the story just used the catch-all interrogation methods.

    So some of the media uses the word torture. Other don’t. And sometimes there can be a split in a newspaper, with reporters not using the word, and house written pieces on the opinion page using it.

    Can we honestly say that techniques that are used on American soldiers in peacetime training, then used on the enemy are really torture?

    Yes, sir. People who are tortured don’t have the option of getting out of it or having the length of their stays in the torture chamber defined by a training regimen only designed to give soldiers an exposure to what they may face. So the position as well as condition of any soldier exposed to torturing as part of a training regimen is not really comparable to someone being tortured in a prison in the real world.

    If one employs the idea that they are the same, one can rationalize away any ill-treatment of prisoners short of murder or permanent maiming by simply exposing Americans to it first.

    What if I thought that burning a soldier or trainee with carbolic acid was a good method of introducing them to the kind of pain they might experience if captured and tormented for the purposes of squeezing out information? Now, carbolic acid is a common compound, and it can be used in a way that it won’t kill a person. For example, small crystals of it placed on the skin burn intensely. But the burns heal rapidly and without complication. However, if your arm is restrained and such small amounts of material are put on it, and you can’t get it off for hours… Well, a person would easily survive it. But most people would agree inflecting pain on someone like this, particularly against their will, is torturing.

  6. Dan April 19, 2009 at 8:30 PM #

    Well, I think the acid comparison is a good example of using an extreme to make something that is not torture seem like it is.

    Really, do you think making a cell uncomfortably warm or cold; and not even as warm or cold as the jailers tents are; that is torture? I do not.

    Do you think that making someone stand for a long time, just like the security guards have to for 12 hour shifts; that is torture? It isn’t.

    If the methods they used, at least most of them anyway, if you truly believe that they rise to the level of torture, then do you advocate passing laws against them in all instances? If they are so immoral, shouldn’t it be a crime for them to be committed on anyone? College frat initiations, sports teams, military training, etc. Should they also be forbidden from being able to torture someone else?

    And do not say that it is different because those people all go into it knowing what they are signing up for. Because if that is the case, then that also applies to a terrorist that is fighting against us.

  7. a knight April 20, 2009 at 1:13 AM #

    In the prototypical interrogation described in the OLC Document dated May 10, 2005, the first interrogation session could begin with the interrogators saying they “will do what it takes to get important information”. As soon as the detainee is perceived as being uncooperative, he could be physically slapped, and walled. At the end of the first session, which may last up to several hours in length, the detainee is put on a liquid diet, placed in a standing stress position nude, and not allowed to sleep. This could last as long as 24hr before the second session began. This interrogation regimen could continue for 30 days without any need of approval.

    During that 30 day interrogation cycle, the detainee could be given one waterboard treatment that lasted 5 days. In any 24hr period during that treatment, the detainee could receive 2 waterboard sessions, with session defined as being strapped to the waterboard for 2 hours, and the limitations on the water treatment being no more than 6 lasting more than 10 seconds in the 2 hour period, and none lasting more than 40 sec. During this 30 day interrogation cycle, the detainee could be deprived of sleep for up to 7.5 days maximum. No mention is given of the recovery time between sleep deprivation cycles.

    So maybe some do not consider this to rise to the level of torture. It goes far beyond what an American court would allow for criminal interrogation by police.

    There is however, another aspect to all of this, and that is the lawyerly weaslieness that oozes from the documents. Its one thing for an attorney to skirt about at the edges of the tax code, or to probe a contract for unintended weaknesses. It is a far different thing for White House Counselors to be pushing the very envelope of torture’s definition. This was despicable and inexcusable behavior.

    We are Americans, and supposed to be better than the rest.

  8. George Smith April 20, 2009 at 6:43 PM #

    College frat initiations, sports teams, military training, etc. Should they also be forbidden from being able to torture someone else?

    Fraternity hazing was forbidden at my undergrad college. That didn’t mean it wasn’t done. But when someone wound up in the hospital, there was hell to pay, the frat losing its charter. It’s also known that hazing can kill people, as can sports initiations, etc. Then criminal charges result. So, yeah, most of these things are illegal in one way or another. But people being people, they do things they are not supposed to or which lack decency, morals and basic good sense. Just because something dodgy is practiced in American life hardly makes it a basis for lawful practice.

  9. T Higgins April 23, 2009 at 4:20 PM #

    So this is all about a “moral standard” against torture. Where is the moral standard in favor of the lives of innocents? I for one find it morally repugnant that a decision has been made by the president of the United States that he is willing to take the lives of US citizens in order to protect a known terrorist from any discomfort when being questioned for information on terrorist plots within our borders.

    Water boarding is not torture. It is a bad day for sure but you don’t die from it and you are not physically impaired, injured or permanently handicapped as a result of it. We are not advocating pulling out fingernails, a thousand cuts, beatings, breaking limbs, starvation etc. which are all forms of torture that all leave lasting physical injuries and pain. We are talking about using techniques that make someone so uncomfortable that they soon reveal life saving information in critical circumstances when innocent lives are at stake. We are not talking about using such tactics on a street thug who committed a mugging but we are talking about blood thirsty terrorists who decapitate people they capture and kill hundreds and even thousands of innocent people in a single act of violence.

    When another attack on this nation occurs and it is only a matter of time before it does simply because no one can for see every possibility and it comes to light that we held in our custody a terrorist who could have provided us with the information to stop that attack but we protected him from being discomforted over the lives of hundreds or thousands of Americans who died as a result, the wave of moral indignation toward the Obama administration and the government will so great as to not be containable by any attempt to justify the decision.

    The lives of the innocent population morally by infinitum out ways the mere discomfort of a single murderous terrorist. Of this there can be no question or justification to the contrary. It is good that we as a nation find it distasteful to have to practice enhanced interrogation tactics; however, it is stupidity on a massive scale to be more concerned with our supposed national image than the lives of our own citizens.

    In the context of our national image to the world, let me also say this. Of all the powers on the global stage, only the US receives this criticism all the while those who have been detained by the US have been treated with better care than they would have been treated by any other nation on the earth. Ask yourselves how would Abu Zubydah have been treated in the same circumstances if here captured by Russia, China, Germany, France, the UK, Italy, Turkey, Saudi Arabia, Egypt, India, Brazil etc. Have any of you ever seen a European prison and their treatment of captives? It is far below US standards and their is no question that the US has treated captive terrorists better than many nations treat their own citizens. Can you even begin to fathom the level of actual torture that would have been used by the Russian FSB or Chinese state police?

    Regardless of the politicalization of US practices for interrogating high value captured terrorists, the US has maintained a higher moral standard in it’s practices that by far exceeds the lack of any moral standard for interrogation practices used by any other world power.

  10. Dan April 24, 2009 at 12:12 PM #

    For you that say that the techniques rise to the level of torture, but then ignore the fact that American servicemen and women and others from our culture experience similar things just fine, what about this?

    If you had a terrorist, and he was afraid of heights, would it be torture to put him in the front seat of a roller coaster, strapped in with all the people that paid lots of money to go on the roller coaster?

    According to the logic of the left, it would indeed be torture. Even though there is no long lasting damage, simply making him uncomfortable in a controlled and safe environment would still be wrong.

    Make NO mistake, another attack is coming, and it will be bigger than 9/11. It will be by Muslims that want to kill us. It matters not to them that Obama is in the office. They are surely laughing at us for picking such a weak man. They are emboldened by our apologies, and they are coming.

    I just wonder what the left will say when that day comes and 10,000 innocent Americans die. Will they actually get on TV and say to us, “Yes, this is terrible, but at least we are better than them.”

    Preposterous.

  11. brad May 6, 2009 at 12:55 AM #

    why torture? they have advanced technology to extract information that is space age in character. Artifical Intelligence programs could do much more than barabaric and obviously misleading “torture” programs.

  12. david korkia May 16, 2009 at 4:39 PM #

    In the book Combat Photogragher ( Time- life,) a U.S. soldier is shown smiling while ARVN troops waterboard a suspect. Seems we are repeatting our mistakes.

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