Joanne Mariner

Let's Talk About Waterboarding

By JOANNE MARINER
Wednesday, November 17, 2010

Last week saw a few more steps toward the banalization of torture. On Monday night, it was former President George W. Bush on television, acknowledging his personal responsibility for ordering the waterboarding of Al Qaeda suspects in CIA custody.

On Tuesday, it was the Department of Justice, announcing that Acting US Attorney John Durham would not pursue criminal charges for the CIA's destruction of videotapes showing the abusive interrogation of terrorism suspects.

And on Wednesday, it was the op-ed page of the New York Times , with an apparently unrelated item: an opinion piece about an arms control treaty currently awaiting ratification by the Senate. A co-author of the piece was John Yoo, who, during his tenure with the Bush administration at the Justice Department, was the author of legal memos purporting to justify torture.

Taken together, these episodes send an ugly but resounding message: Senior U.S. officials face no real consequences for the crime of torture. Not only do they seem immune from prosecution in a court of law, they are even welcome on the op-ed pages of elite publications.

Legal Justifications

In recent years, as memos and other evidence have come to light, it is easy to follow the trail from John Yoo to George Bush to the CIA.

"Are the techniques legal?" Bush said he asked his advisors when the waterboarding of detainees was under discussion. With Justice Department lawyers asserting that the near-drowning technique did not violate the law -- in a series of verbal and written opinions that have since been discredited -- the president apparently had the legal cover he needed to authorize the CIA's crimes.

These memos served a purpose -- they were used to facilitate torture. But their reasoning was shoddy; their citation of precedent was scattershot and unreliable; and their conclusions were simply wrong.

A report from the Justice Department's Office of Professional Responsibility issued in February 2010 firmly repudiated the memos' legal reasoning. It found specifically that, in drafting the memos, Yoo had "violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice."

An Ongoing Investigation

Despite the crumbling of torture's legal facade, investigations into the crime of torture have made little progress.

Durham, the special prosecutor who had been assigned to the CIA videotape-destruction case by former Attorney General Michael Mukasey, is now looking into CIA crimes against detainees as well. In August 2009, when Attorney General Eric Holder released a CIA Inspector General report documenting CIA abuses, he appointed Durham to carry out a preliminary investigation of those abuses.

The focus of the review is not, however, on the techniques that President Bush authorized. Instead, it looks into so-called "unauthorized" interrogation techniques -- practices that went beyond what was allowed under the legal advice provided by the Justice Department at the time. In other words, even though the reasoning and conclusions of the Bush administration's legal memos have been found to be faulty, they still effectively serve to provide legal cover.

While the apparent limits of Durham's investigation are cause for concern, the existence of the investigation is promising. The world is waiting to see if Durham makes a serious effort to pursue what is now overwhelming evidence of abuse.


Joanne Mariner is a human rights lawyer based in New York and Paris. Her columns about CIA abuses can be found in FindLaw's archive of her columns.