[….] The overall picture that the documents paint is not of a rogue agency, but of a rogue administration. Yes, the CIA affirmatively proposed to use patently illegal tactics — waterboarding, sleep deprivation, physical assault, and painful stress positions. But at every turn, senior officials and lawyers in the White House and the Department of Justice reassured the agency that it could — and should — go forward. The documents reveal an agency that is extremely sensitive to whether the program is legally authorized and approved by higher-ups — no doubt because it understood that what it was doing was at a minimum controversial, and very possibly illegal. The documents show that the CIA repeatedly raised questions along these lines, and even suspended the program when the OLC was temporarily unwilling to say, without further review, whether the techniques would ‘shock the conscience’ in violation of the Fifth Amendment. But at every point where the White House and the DOJ could have and should have said no to tactics that were patently illegal, they said yes.
From the start, the administration crafted its policies to give the CIA leeway. In February 2002, for example, even before the CIA detainee and interrogation program had formally begun, President Bush issued a memo declaring that while the Geneva Conventions do not apply to al Qaeda and Taliban detainees, US Armed Forces would nonetheless as a matter of policy treat detainees humanely. At the time, critics, myself included, focused on Bush’s caveat that ‘military necessity’ might justify inhumane treatment. But one of the documents reveals that the administration also intentionally drafted the memo to exclude the CIA. (To his credit, Marty Lederman may have been the first to identify the significance of the focus on the Armed Forces, but that was not until many years later in January 2005.) A declassified February 2003 memo drafted by CIA General Counsel Scott Muller reports that Justice Department lawyer John Yoo told Muller in January 2003 ‘that the language of the [February 2002] memorandum had been deliberately limited to be binding only on ‘the Armed Forces’ which did not include the CIA.’ Yoo also confirmed that in drafting his memo authorizing the CIA program, he had considered the intent and effect of the February 2002 memo, and concluded that it posed no bar.
The declassified documents also reveal that Condoleezza Rice, National Security Adviser, and John Bellinger, her lawyer, both of whom many years later sought to restrict use of the CIA’s techniques, were personally and intimately involved in the initial approval of the tactics. In April 2002, shortly after Abu Zubaydah was captured, Bellinger arranged the first meeting on the subject of enhanced interrogation, and told OLC that the State Department should be kept out of the loop. His boss, Rice, gave policy approval to the tactics in July 2002, pending legal sign-off by the Department of Justice, which came one week later, in the now infamous August 1, 2002 memo drafted by Yoo and Bybee. The documents do not reveal what Rice was told by Bellinger, her counsel, about the legality of approving waterboarding, extended sleep deprivation, and the like, but there is no sign that he told her the tactics were illegal. If he had done so, it would have been very difficult for her to approve the tactics in the face of such advice.
In December 2002, Bellinger twice confirmed to CIA General Counsel Muller that ‘use of the type of techniques authorized by the Attorney General had been extensively discussed and was consistent with the President’s …. February Memo.’ On January 13, 2003, in a meeting with Muller, White House Counsel Alberto Gonzales, Counsel to the Vice-President David Addington, Yoo, and Defense Department General Counsel Jim Haynes, Gonzales and Addington also reaffirmed that the February 2002 memo about humane treatment did not apply to the CIA. And three days later, in a meeting with Rice, Secretary of Defense Dnnald Rumsfeld, Secretary of State Colin Powell, Vice-President Dick Cheney, and Haynes, Muller yet again raised the possible inconsistency between ‘what the CIA was authorized to do and what at least some in the international community might expect in light of the Administration’s public statements about ‘humane treatment’ of detainees.’ According to Muller, ‘Everyone in the room evinced understanding of the issue. CIA’s past and ongoing use of enhanced techniques was reaffirmed…. Rice clearly distinguished between the issues to be addressed by the military and CIA.’
In July 2003, after Jim Haynes wrote a letter to Sen. Patrick Leahy (D-Vt.) contending that US policy “is to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with [the Constitution],” the CIA again raised concerns about whether the administration’s public commitment to humane treatment could be squared with its program – understandably, as its tactics were the very opposite of humane, and would plainly be unconstitutional if applied to anyone protected by the Constitution. Another declassified document shows that CIA Director George Tenet sent a memo to Rice requesting express reaffirmation of the CIA’s program. Later that month, Tenet met with, among others Attorney General Ashcroft, DOJ lawyer Patrick Philbin, Rice, Gonzales, Bellinger, and Cheney to review the program. Ashcroft, backed by a full explication by Philbin, “forcefully reiterated the view of the Department of Justice that the techniques being employed by the CIA were and remain lawful and do not violate the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment.” When Ashcroft was told that Khaled Sheikh Mohammed had been waterboarded 119 times, Ashcroft replied “that he was fully aware of the facts and that CIA was ‘well within’ the scope of the [OLC] opinion.” Cheney, Rice, and Ashcroft all confirmed that the CIA was “executing Administration policy.”
After the Abu Ghraib photos were released in April 2004, the CIA again sought reaffirmation of its program. In fact, in May 2004, Tenet suspended the interrogation program, and expressly requested the NSC Principals and the Attorney General to approve of the CIA’s tactics yet again. The next month, the Washington Post published the August 2002 OLC memo, the first written approval of the torture tactics, which until then had remained a secret. As soon as that memo became public, then-OLC head Jack Goldsmith withdrew it; what everyone went along with in private was not sustainable once exposed to the light of day. Yet at a meeting in July 2004 with Rice, Ashcroft, Gonzales, Bellinger, and Deputy Attorney General James Comey, Rice said that the CIA’s techniques were in her view humane, and Ashcroft reaffirmed their legality (apart from waterboarding, which the DOJ was then reevaluating). The next month, Daniel Levin, the new head of the OLC, authorized the use of the waterboard for a particular detainee (although the CIA did not ultimately use the waterboard in that instance).
In December 2004, as has been previously reported, Levin issued a new memo on interrogation techniques, to replace the withdrawn August 1, 2002 memo. Its rhetoric was designed to sound more reasonable than the initial memo, but it included a critical footnote, stating that the OLC did not believe any of its conclusions regarding previously approved interrogation techniques would be different under the new standards. In other words, nothing material had changed. The OLC was still saying yes. About six months later, still another OLC head, Stephen Bradbury, wrote two memos opining that none of the CIA’s techniques were cruel, inhuman, or degrading, nor would they violate the Constitution if employed against detainees in the United States.
In short, the declassified documents reveal that the CIA was very nervous about the legal authority for its interrogation program – even after DOJ and White House officials had repeatedly given the program their blessings. It is almost as if the CIA had a guilty conscience; it knew what it was doing was wrong, so it had to be repeatedly reassured that it was okay. Above all, it seems, the agency wanted to make sure it had legal cover.
But the documents also underscore an equally important point, one not sufficiently emphasized by the SSCI Report and the coverage of it: the CIA was only one part of this conspiracy to commit war crimes. The scheme had the participation and express or tacit assent of many others, from President Bush and Vice-President Cheney and the NSC Principals on down to Justice Department lawyers John Yoo, Jay Bybee, Patrick Philbin, Daniel Levin, Stephen Bradbury, DOD General Counsel Jim Haynes, Counsel to the Vice-President David Addington, and Counsel to the National Security Adviser John Bellinger. Not one of these people said no. Had any one of them done so, the program might well have been stopped in its tracks. Yet most of them have gone on to lucrative, prestigious, and/or powerful positions in private practice, the academy, or other government positions. Where is the accountability for their part in the CIA’s grievous wrong?
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And here’s a link to my bibliography, Torture: Moral, Legal, and Political Dimensions.