By William Fisher
“An ethical train wreck” was the phrase used by one witness to describe the legal reasoning behind the Justice Department’s recently released memos justifying the use of waterboarding and other forms of “enhanced interrogation techniques.”
The phrase came during the testimony of David Luban, a law professor at Georgetown University, before a panel on administrative oversight and the courts subcommittee of the Senate Judiciary Committee today.
Sen. Sheldon Whitehouse, a Rhode Island Democrat, chaired the hearing. Whitehouse said the administration of former President George W. Bush inundated the American public in a "near avalanche of falsehood" on the subject of detainee treatment.
"We were told that waterboarding was determined to be legal, but were not told how badly the law was ignored, bastardized and manipulated by the Department of Justice's Office of Legal Counsel nor were we told how furiously government and military lawyers rejected the defective OLC opinions," Whitehouse said.
The panel also heard from Bush-era State Department counselor Philip Zelikow, who testified that he unsuccessfully dissented from the Justice Department view that harsh interrogation practices were either legal or moral.
He told the subcommittee – the first congressional panel to address allegations of torture -- that Bush administration officials engaged in a "collective failure" on detention and interrogation of suspected terrorists.
He added that the issue was one that senior Bush Administration officials did not wish to discuss. He told the panel that he was ordered to rescind a dissenting memorandum he had written on the interrogation issue and to find and destroy all copies of it.
Zelikow, who served as executive director of the 9/11 Committee that investigated the terrorist attacks of September 11, 2001, said that Justice Department memos on “enhanced interrogation techniques” were "unsound, even unreasonable." He called for a "thorough public inquiry" into the issue.
"The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information," Zelikow said.
"This was a mistake, perhaps a disastrous one. It was a collective failure,” he said.
The panel also heard from a retired special agent of the Federal Bureau of Investigation (FBI), Ali Soufan, who interrogated some suspected al-Qaeda detainees in the U.S. embassy bombings in East Africa, testified from behind a screen to hide his identity.
Soufan said he gained valuable intelligence by using traditional non-coercive FBI interrogation techniques when questioning suspected al Qaeda prisoners.
He said he was replaced at the insistence of the Central Intelligence Agency (CIA), which he said was using inexperienced contractors, not CIA operatives, to conduct interrogations.
Soufan told senators that so-called enhanced interrogation techniques were ineffective and unreliable, and "as a result harmful to our efforts to defeat al-Qaeda."
"It was one of the worst and most harmful decisions made in our efforts against al Qaeda," he said.
A cautious counterpoint was provided throughout the hearing by Senator Lindsey Graham, a conservative Republican from South Carolina, who has served for many years as a military lawyer in the U.S. Air Force Reserve.
Graham repeatedly made the point that those who pressed for more aggressive interrogation techniques were not “evil” people, but simply those who were trying to protect the American people from the next terrorist attack on the U.S.
He said it should come as no surprise that responsible lawyers can look at the same facts and come to honestly different conclusions.
Prof. Luban disagreed with that reasoning. He told the committee he thought it “impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law." He added that Justice Department lawyers had a special responsibility not to "rubber stamp administration policies" or "provide cover for illegal actions."
Luban concluded that memos written by Justice Department lawyers in the administration of former president George W. Bush "cherry pick" legal precedents and fail to consider or mention a 1983 case in which Texas law enforcement officers were prosecuted and jailed for waterboarding prisoners to make them confess.
"A legal adviser must use independent judgment and give candid, unvarnished advice," Luban said.
Three Bush-era lawyers, all working in the DOJ’s Office of Legal Counsel, are the authors of a series of controversial memos recently released by the Obama Administration. The so-called “torture memos” were written by JohnYoo, now a law professor in California, Jay Bybee, now a federal appeals court judge, and their successor in the office, Steven G. Bradbury.
The Office of Legal Counsel is the DOJ unit that provides the president and other senior government officials with definitive opinions on a wide range of issues. Its views traditionally carry great weight.
Today’s testimony came amid calls for these lawyers – and their superiors – to be criminally prosecuted, disbarred, or investigated in depth as part of a wider Congressional probe of former government officials and contractors for their activities during the Bush war on terror.
The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, a Vermont Democrat, has proposed a “truth commission” to investigate potential Bush-era war crimes. Others, including many human rights groups, have pressed for appointment of a special prosecutor by the Department of Justice. An investigation is currently being carried out by the Senate Intelligence Committee. However, most of the testimony in that probe will be secret because of the classified material involved, and it will be many months before the investigation is completed.
President Obama’s reaction to these and other approaches has ranged from lukewarm to ambivalent. While noting that “no one is above the law,” he has said repeatedly that his inclination is to look forward, not backward.