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OLC torture memos

The ACLU has posted PDFs of the Bush OLC torture memos released last week, and notes that under Bush the Office of Legal Counsel "became a facilitator for illegal government conduct, issuing dozens of memos meant to permit gross violations of domestic and international law." As the ACLU's Jameel Jaffer writes, these memos:

...authorized interrogators to use the most barbaric interrogation methods, including methods that the U.S. once prosecuted as war crimes. The memos are based on legal reasoning that is spurious on its face, and in the end these aren't legal memos at all - they are simply political documents that were meant to provide window dressing for war crimes.

As described by the NYT, "the four memos give an extraordinarily detailed account of the C.I.A.'s methods and the Justice Department's long struggle, in the face of graphic descriptions of brutal tactics, to square them with international and domestic law." Liliana Segura discusses the memos at AlterNet, calling them "the smoking gun for the sadistic crimes of the Bush administration." At FDL, Christy Hardin Smith makes the comparison to Solzhenitsyn's Gulag Archipelago, and Hilzoy draws an even worse parallel at Washington Monthly--to Orwell's 1984. Andrew Sullivan notes the contradiction at the heart of Bush's torture. "[T]he Bush administration," writes Sullivan:

...wanted to do two things at once: to declare to the world that freedom is on the march, and human rights are coming to the world with American help, while simultaneously declaring to captives that the US has no interest in the law, human rights, accountability, transparency or humanity. They wanted to give hope to all the oppressed of the planet, while surgically banishing all hope from the prisoners they captured and tortured.

Sullivan stops just short of calling Orwell the patron saint of Bushism:

As Orwell predicted, the English language had to disappear first. The president referred to waterboarding prisoners as "asking them questions." Bringing prisoners' temperatures down to hypothermia levels was simply an "alternative set of procedures." The entire process is "enhanced interrogation."

Referring to waterboarding as "swallowing a little too much water" is the same type of euphemism, designed to evade the reality of torture. Interestingly, some details survived the redaction process to reveal the name of a ghost detainee. ThinkProgress cited a ProPublica article identifying a detainee named Hassan Ghul:

According to the memo, Ghul was one of 28 CIA detainees at the time who had been subjected to the agency's "enhanced interrogation techniques." Specifically, the memo says he was subjected to "facial hold," "facial slap," "stress positions," "sleep deprivation," a technique called "walling," in which a detainee's shoulders are repeatedly smashed against a wall, and the "attention grasp," in which the detainee is placed in a choke-hold and slapped.

So it appears we now have evidence Ghul was in a CIA prison. Where he is today is still a mystery.

While some things have been revealed, others have been obscured. Jeffrey Kaye at AlterNet calls the memos "full of lies," observing that:

...even an initial cursory look at the August 1, 2002 Bybee memo on the "Interrogation of Al Qaeda Operative" shows that the memos were written in bad faith, were meant to deceive, and utilized a memorandum by Jerald Ogrisseg that explicitly warned against using at least some of the techniques (waterboarding) that were approved by OLC.

I'm confident that other researchers will find much more wrong with the recently released OLC memos. Their extremely poor quality and their misrepresentations of medical and psychological information make them very hard to imagine using as the basis of "good faith" representations for those CIA interrogators for whom Attorney General Holder granted immunity, i.e., those "who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice..."

I suppose a lot rides now on how you define "authoritative legal advice."

Even more rides on how determined we are, as a nation, that justice must be pursued and criminals punished. Our moral standing depends on it, as does the honor and integrity of the White House. Obama's statement on the memos is here, and he calls this moment "a time for reflection, not retribution:"

I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. [...] The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

Obama is likely afraid of being accused of "playing politics" if he supports an investigation, and is equivocating on that basis. Ironically, by allowing political concerns to influence his actions, his is effectively playing politics by attempting to remain above the fray. The only way, paradoxically, to avoid partisanship is to support the necessary legal action. Glenn Greenwald writes about our obligation to prosecute the torturers, citing statutory evidence (the Convention Against Torture, the Geneva Convention, the Nuremberg Charter, all given force of law by the Constitution) before throwing the gauntlet before those who would defend the Bush torture regime:

If, as Barack Obama proclaimed yesterday, "the United States is a nation of laws" and his "Administration will always act in accordance with those laws," isn't it the obligation of those opposing prosecution to justify that position in light of these legal mandates and long-standing principles of Western justice? How can they be reconciled?

Andrew Sullivan observes how the Bushies used extra-territorial means to a most despicable end--pretending that their torture was beyond the law:

It's right there in Steven Bradbury's memo of May 30, 2005:
By its terms, Article 16 [of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment] is limited to conduct within "territory under [United States] jurisdiction. We conclude that territory under United States jurisdiction includes, at most, areas over which the United States exercises at least de facto authority as the government. Based on CIA assurances, we understand that the interrogations do not take place in any such areas.

So no torture happened and the US broke no treaties.

That is such a cynical and self-serving legal interpretation that I am at a loss for words; IANAL, but does that strike anyone else as being unusually mendacious--even for the Busheviks? Scott Horton writes at Harper's that "the instrumental role played by these memos...satisfies the prerequisites for a criminal charge against the memo writer under section 2340A [see USC ยง2340-2340A here], conspiracy to torture:"

The preparation and issuance of these memoranda were criminal acts, and the relevant level of mens rea likely emerges from the dialogue surrounding their issuance. [...] The torture memoranda were written to enable torture and with the full expectation that it would happen. They are, therefore, documents that evidence criminal conduct. But the full dimensions of the criminal dealings remain substantially obscured. It's time to start unwinding the torture tango, through a process that involves both a special commission of inquiry and a special prosecutor.

On the international front, Spain has gone through another reversal. After initial hints about indicting the Bush Six, Spain's AG rejected requests to prosecute the torturers,

Mr Conde-Pumpido said that if there was a legitimate reason to file a complaint against the six accused, "it should be done before local courts with jurisdiction, in other words in the United States".

but the Center for Constitutional Rights notes that judge Baltazar Garzon is still pursuing a criminal investigation:

CCR Executive Director Vincent Warren said, "It is gravely disappointing that we must rely on European countries like Spain to hold U.S. officials accountable for war crimes. This is a golden moment for the current administration to appoint a special U.S. prosecutor and break with the illegalities of the past."

CCR Vice President Peter Weiss, an expert in international human rights law, said, "It was the lawyers who flashed the green light for torture with their mendacious made-to-order opinions. They therefore bear the primal guilt for the torture which occurred."

The torture may have stopped, but it's not truly over until justice has been done. These crimes need to be investigated--and prosecuted appropriately. Greta Christina writes that justice is a necessity:

The fact that these crimes were politically motivated and done on behalf of the government doesn't make it less important that we prosecute. It makes it more important. Much, much, much more important.

There's another word for what Obama is so dismissively calling "retribution" or "laying blame." That word is "justice." [...] Obama is wrong. We need to bring torturers and war criminals to justice. And we need to start doing it now.


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