Torture's Paper Trail

By JOANNE MARINER
Wednesday, Oct. 10, 2007

Last week, the New York Times published a front-page article describing two legal memoranda issued secretly by the Bush Administration in 2005 that purported to provide guidance regarding the legality of CIA interrogation methods. What the memos said, specifically, was that certain CIA practices did not violate the law.

I emphasize the "purported" purpose of the memos because I think their true purpose was quite different. Rather than giving objective guidance that would assist CIA officials in conforming their conduct to legal standards, the memos were actually meant to provide legal cover for conduct that violated fundamental legal norms.

The real purpose of the memos was, in short, to immunize US officials from prosecution for abusive conduct. They were meant to facilitate abuses, not to prevent them.

These two memos are part of a larger picture that includes earlier legal memos, a classified presidential directive, and last year's Military Commissions Act. Taken together, they're a paper trail for torture.

The OLC Paper Trail

According to the New York Times, a still-secret legal opinion issued by the Department of Justice in early 2005 provided explicit authorization to the CIA to subject detained terrorist suspects to a combination of abusive interrogation methods, including simulated drowning (known as "waterboarding"), head-slapping, and frigid temperatures. A subsequent legal opinion, issued just before congressional legislation was passed barring the cruel, inhuman or degrading treatment of detainees, reportedly declared that none of the interrogation methods used by the CIA violated that standard.

The two newly-revealed memos were reportedly drafted by the Justice Department's Office of Legal Counsel (OLC), the office charged with providing authoritative legal guidance to other executive branch officials. They were said to have been approved by then-Attorney General Alberto Gonzales.

A previous opinion issued by the OLC in 2002, when John Ashcroft was Attorney General, concluded that the president was not bound by federal laws prohibiting torture, and that the Department of Justice lacked authority to enforce anti-torture laws against officials who acted with the president's authorization. It also provided a narrow and inaccurate interpretation of what techniques constitute torture under U.S. and international law.

Although the memos did not mention this fact, "waterboarding," one of the interrogation methods they reportedly defended, has been prosecuted as torture by U.S. military courts since the Spanish-American War. Indeed, after World War II, U.S. military commissions prosecuted and severely punished enemy soldiers for having subjected American prisoners to waterboarding, as well as other techniques used by the CIA in recent years such as sleep deprivation, forced standing, and removal of clothing.

To defend such techniques as legal is not only to ignore international norms, it is to forget U.S. history.

The Paper Trail's Origins

The long paper trial for CIA interrogation techniques attests to the CIA's increasingly conservative nature. Although the CIA is willing to violate the laws of foreign countries, or even international law, CIA officials demand clear instructions from the political leadership and abundant legal cover. The agency does not operate on a wink and a nod. It does not want its agents to be prosecuted.

Indeed, because of the agency's insistence on explicit high-level authorization for CIA actions, the very beginnings of the CIA's post-September 11 detention and interrogation program are set out in a presidential document, albeit one whose exact language remains secret. On September 17, 2001, after studying a proposal put together by then-CIA head George Tenet, President Bush signed a sweeping presidential finding giving the CIA permission to kill, capture and detain members of al Qaeda anywhere in the world.

This finding provided the foundation of the CIA program, and it meant that ultimate responsibility for the program was clear.

Mistake of Law and Reasonable Belief

But back to the OLC memos. These memos did not explicitly authorize abuses, since the OLC has no power to give orders to the CIA. Instead, they were framed as legal advice: They were supposedly meant to set out the legal boundaries for interrogation practices, to tell CIA officials what they could and couldn't do.

So, one asks, how could CIA officials possibly benefit from inaccurate legal information? As the adage says, mistake of law is no excuse.

But here is the key point: mistake of law is an excuse, in some circumstances, when the potential criminal defendant is a public official. Rules on qualified immunity for criminal conduct provide that if a public official reasonably believes that his actions are legal, he will not be prosecuted even if it later turns out that he violated the law. Not only are OLC memos, given their recognized authority, an ideal basis on which to base a defense of reasonable belief, but last year's Military Commissions Act also includes provisions to strengthen this defense.

Thanks to the Bush Administration's paper trail, CIA officials can not only say that they were just following orders, they can also say that they didn't know that what they were doing was wrong. (Unless, of course, they had read expert opinions by anyone outside of the Administration, or held basic, common-sense views about torture.)

A recent book by Jack Goldsmith, who spent several months as head of the OLC in 2003-2004, makes the immunity point clear: The CIA wanted legal protection and his predecessors at the OLC provided it. Not only that, but if the New York Times's account of the new memos is accurate, then his successors at the OLC provided it too.

The Next Attorney General

And the story is not over. Reports of the two new torture memos come just before the confirmation hearings of Michael Mukasey, the Administration's nominee for attorney general. These revelations underscore the need for the next attorney general to declassify and repudiate the secret legal opinions that have encouraged US officials to carry out abusive interrogations.

Human Rights Watch, the organization for which I work, believes that Mukasey should not be confirmed unless he repudiates all of the legal memoranda issued by the Justice Department that justify or defend abusive interrogation practices, and I agree. Indeed, Human Rights Watch has said, and I agree, that Congress should not only press Mukasey about his view of the newly-revealed legal opinions, it should also hold hearings to investigate the responsibility of former Attorney General Gonzales and other Administration officials in facilitating the torture and other abuse of detainees.

Congress should be absolutely clear that it will not confirm another Attorney General who thinks his job is to advise government officials how to break the law.


Joanne Mariner is a lawyer with Human Rights Watch. Her previous columns on the treatment of "war on terror" detainees can be found in FindLaw's archive.