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Last week’s New York Times story about two secret Justice Department legal opinions on CIA interrogation techniques leaves no room for doubt…

  • Jonathan Hafetz
October 9, 2007

*Cross-posted from The Huffington Post

Last week’s New York Times story about two secret Justice Department legal opinions on CIA interrogation techniques leaves no room for doubt. We are in the midst of a full-fledged scandal involving illegality and deceit at the highest levels of the United States government. Call it Torturegate.

For the past six years, the, the administration has deliberately circumvented longstanding prohibitions against torture and other abuse. It has facilitated and sanctioned the use of highly coercive interrogation tactics, not only in secret CIA prisons (or “black sites”) but also at Guantánamo Bay and even in the United States. Perhaps worst of all, the administration has sought, in secret, to justify the techniques as legal.

Torturegate’s origins lie in the decisions and writings of a cabal of high-ranking officials from the White House and the Office of Legal Counsel (“OLC”), the once prestigious branch of the Justice Department that function as the president’s chief legal advisor. The participants included Vice President Dick Cheney, his chief of staff David Addington, former White House Counsel and Attorney General Alberto Gonzales, and OLC attorney John Yoo. None had any real life experience waging war or fighting terrorism. Yet, they all believed fervently that America had to “work … the dark side” to defend itself.

This group helped initiate and defend a “war on terrorism” that eliminated all constraints on the treatment and interrogation of detainees. Not even the most minimal protections of the Geneva Conventions applied, opening the door to the creation of a global network of prisons beyond the law. Under the misguided assumption that harsh measures produce good intelligence, the United States began to engage in a series of so-called “enhanced interrogation techniques,” including ones that simulate drowning and induce hypothermia. That these techniques did not leave physical marks did not make them any less cruel than the rack and the screw.

OLC then provided legal cover to assuage concerns that officials who engaged in these tactics might be liable under a federal statute criminalizing torture. A now notorious August 2002 legal memo (drafted principally by John Yoo) sought to define torture so narrowly as to render it meaningless, limiting it to the extreme physical pain accompanying organ failure or death. For good measure, the memo said torture could never be illegal as long as the president had approved it.

The public outcry after Yoo’s memo was leaked to the press, coupled with internal opposition within OLC, prompted reconsideration. A subsequent memo from December 2004 called torture “abhorrent” and suggested a retreat from the prior assertion of sweeping presidential authority to engage in the practice. But the December 2004 memo did not question the legality of any of the torture tactics. Nor did it address the problem of other cruel, inhuman, or degrading treatment (“CID”) that did not meet the legal definition of torture.

In 1988, the United States signed a treaty outlawing CID (or “torture lite” as it is sometimes called, a treaty that now more than 140 countries have ratified. But the administration dodged this binding legal obligation by arguing that the treaty does not restrain the United States when it acts abroad.

So, in December 2005, Senator John McCain and other members of Congress addressed this perceived loophole by categorically banning CID by any U.S. official, including the CIA, anywhere in the world.

But OLC, now under Gonzales’ leadership, had already acted to keep the loophole open. As The New York Times reported last week, two secret OLC memos from earlier that year found that the harshest interrogation tactics did not constitute CID, even when used in combination. Notably, the administration did not share these opinions with Congress, which unknowingly voted to outlaw techniques that the executive branch secretly determined were legal. The two opinions still remain in effect, sanctioning the use of harsh interrogation techniques against the untold number individuals who disappear into America’s network of secret prisons.

Although Torturegate’s full repercussions will not be known for years to come, its effects have already proven devastating. Torturegate has eroded confidence in the Justice Department and shattered the reputation of OLC, once widely respected for providing independent legal advice to presidents.

Torturegate has also undermined America’s credibility. Gone is America’s moral authority to advocate on the world stage for justice and human rights. Yes, other regimes may be more lawless and repressive but these differences are increasingly ones of degree. Virtually all governments seek to justify their actions in the name of the public good. The question is whether a nation’s leaders exercise the self-restraint necessary to make their nation one of laws not of men.

If America is to regain what it has lost, it must act to repair the damage. Congress must make good on its demand that the administration produce the two secret 2005 OLC opinions, along with other prior legal opinions about interrogation techniques. It must also ensure the end of secret prisons, take additional steps to prohibit the CIA’s use of torture techniques (such as by mandating the CIA follow the Army’s interrogation manual), and restore habeas corpus. And steps must be taken to rebuild OLC’s integrity.

Torturegate may have been the result of a small group of individuals bent on avoiding the rule of law. But, now that their work has been exposed, it is our collective responsibility to take corrective action.

Hafetz: “Torturegate” (PDF)