By William Fisher
The Justice Department today released four secret memos used by the Bush administration to justify torture.
The memos, produced by the Justice Department's Office of Legal Counsel (OLC), provided the legal framework for the CIA's use of waterboarding and other illegal interrogation methods that violate domestic and international law.
The disclosures were made before Judge Alvin Hellerstein, an appointee of former President Bill Clinton, in U.S. District Court in New York in a postponed response to a Freedom of Information Act lawsuit brought by the American Civil Liberties Union (ACLU).
According to a deadline set by the court, the government was ordered to turn over by today memos authored by Jay Bybee and Steven Bradbury, then top lawyers in the DOJ Office of Legal Counsel (OLC), that supplied the framework for the Bush administration interrogation program – or else explain why they continue to withhold them from the public. To the surprise of many observers, the DOJ chose to comply with the judge’s order.
OLC is the DOJ office that provides authoritative legal advice to the President and all Executive Branch agencies. It drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Executive Branch.
The ACLU has called for the Justice Department to appoint an independent prosecutor to investigate torture under the Bush administration.
Three of the memos released today were written by Steven Bradbury, then a lawyer in the OLC, in 2005. The fourth memo was written by then-OLC head Jay S. Bybee in August 2002. He is now a federal judge, appointed by former President George W. Bush.
"Memos written by the Office of Legal Counsel, including the memos released today, provided the foundation for the Bush administration's torture program," said Jameel Jaffer, Director of the ACLU National Security Project.”
Jaffer said, "Through these memos, Justice Department lawyers 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. While the memos should never have been written, we welcome their release today. Transparency is a first step towards accountability."
Since 2003, the ACLU has filed several lawsuits to enforce FOIA requests seeking government documents relating to torture, rendition, detention and surveillance. These lawsuits have resulted in the release of thousands of records.
President Obama said today that the government would guarantee immunity to CIA officials who were involved in illegal “enhanced interrogation techniques.” That echoes a statement made by CIA Director Leon Panetta during his confirmation hearing in the U.S. Senate.
The Center for Constitutional Rights (CCR) – one of the advocacy groups whose lawyers have been among the most active in mobilizing defense attorneys for Guantanamo Bay detainees – was quick to respond.
The group said, “It is one of the deepest disappointments of this administration that it appears unwilling to uphold the law where crimes have been committed by former officials.”
“Whether or not CIA operatives who conducted waterboarding are guaranteed immunity, it is the high level officials who conceived, justified and ordered the torture program who bear the most responsibility for breaking domestic and international law, and it is they who must be prosecuted,” CCR said in a statement.
“In the president’s statement today, the most troubling contradiction is the contrast of the words, ‘This is a time for reflection, not retribution,’ followed shortly by, ‘The United States is a nation of laws.’ Government officials broke very serious laws: for there to be no consequences not only calls our system of justice into question, it leaves the gate open for this to happen again.”
The decision to release the long-secret memos posed a major test for President Barack Obama, who promised during his first week in office said he would establish a new transparency in government. To make good on that pledge, the administration previously released nine secret Justice Department memos dealing with counterterrorism and interrogation policy.
The decision was seen by some as the result of an Obama balancing act: living up to his promise of transparency while protecting CIA personnel, cooperative relationships with the intelligence services of other countries, and the national security interests of the U.S.
The administration’s decision may have marked a new phase of what has been described as a pitched battle between the Department of Justice and the Central Intelligence Agency.
It has been reported that Attorney General Eric Holder, head of the DOJ, was in favor of full disclosure, but that senior career CIA officials under the agency’s new director, Leon Panetta, argued that disclosure would compromise national security and damage morale at the spy agency.
At the same time, Panetta said that CIA operatives who performed waterboarding and other illegal interrogation techniques would not be prosecuted because they believed they were acting under the legal authority of the President of the United States, based on memoranda prepared by the DOJ’s Office of Legal Counsel.
The inter-agency controversy reportedly began in the waning days of the administration of President George W. Bush, when then-CIA Director Michael Hayden reportedly became incensed over the possible disclosure of the memos.
Some observers have speculated that some of these senior CIA officials were themselves deeply involved in the management of the interrogation programs and that they are trying to shield themselves from possible prosecution.
CIA Deputy Director Steven Kappes is one of the officials often mentioned as needing protection.
Hayden brought Kappes back to the number two position at the CIA in 2006, two years after the legendary clandestine operative resigned following a confrontation with Patrick Murray, chief of staff to then-Director Porter J. Goss. Kappes’s top deputy, Michael Sulick, also resigned, as did others who were unhappy with the new Goss team.
These resignations reportedly triggered an exodus of seasoned case officers.
Kappes's top priority when he rejoined the agency was to help rebuild the CIA’s human intelligence capabilities.
When President Barack Obama appointed Panetta to head the CIA, Kappes remained as the agency’s second in command. Press reports have asserted that Kappes was personally involved in the CIA’s harsh interrogation programs, and also that he fears that disclosure of the secret memoranda will fuel another exodus of experienced CIA operatives.
The CIA still faces at least one other difficult decision – whether to release the tightly held reports by the CIA inspector general on torture and rendition. Disclosure of the reports will add fuel to the debate over whether Bush administration officials should be investigated for their role in the implementing the torture regime.