April 16, 2009
The Torture Memos
DOJ released four Bush era OLC memos today providing the legal justification for certain "enhanced interrogation techniques" of alien detainees held outside the United States. These newly released memos concluded that specific techniques (and combinations of techniques) did not violate the U.S. anti-torture statute and the Convention Against Torture (the "CAT"). They addressed no specific constitutional claim (like executive authority), except insofar as one memo discussed the Fifth Amendment due process standard "shocks the conscience" as it related to U.S. obligations under the CAT.
In short, the OLC wrote that various specific techniques (well described in the memos)--from facial slaps, to diet control, to sleep deprivation, to waterboarding and others, including combinations of these techniques--did not constitute "torture," because they did not create the kind of severe and lasting physical or psychological harm that the statute and the CAT prohibit. Moreover, interrogators lacked the requisite intent to create these kinds of harms, the techniques were carefully designed and tested, and medical personnel were present to call a stop to techniques that risked severe and permanent harm.
Each of the memos was clearly written in response to a very narrow and precise request for legal advice from the CIA--the exact descriptions of the techniques, based on CIA representations, are simply chilling--and the advice was narrowly tailored to carefully respond only to the CIA's request. Two of the memos made much of the fact that the detainees--Zubaydah in one memo and "a high value al Qaeda detainee" in another--likely had ticking time bomb information. The memos also made much of the fact that the techniques, especially the harshest, like waterboarding, had been tested as part of U.S. military SERE training and that trainees did not experience the kind of severe and lasting harms that would make the techniques "torture" under U.S. law and the CAT.
Three memos concluded that various techniques and combinations did not violate the U.S. anti-torture statute; one memo concluded that the techniques did not violate the CAT. This latter memo, the May 30, 2005, memo, concluded that CAT was not applicable, because the CIA engaged in the techniques overseas, not in the U.S. But in any event, the techniques did not "shock the conscience"--the Fifth Amendment due process standard. (That memo concluded that the Eighth Amendment prohibition on cruel and unusual punishment didn't apply, because these were not law enforcement measures.) OLC reached this alternative conclusion at the request of the CIA; the Agency specifically asked the OLC whether the techniques would violate the CAT if applied within the United States.
The memos reveal that the CIA asked for advice about much more specific techniques between 2002 and 2005; the OLC provided that advice, suggesting somewhat greater concerns about the evolving techniques (even as it concluded that they were not "torture"). For example, one of the May 10, 2005, memos much more carefully defined the circumstances under which the techniques would not constitute torture than the earlier August 1, 2002, memo, dealing, e.g., with specific water temperatures for cold water dousing, the specific time periods for and frequency of waterboarding, and safeguards especially for sleep deprivation and waterboarding. The 2005 memo also contained much more detailed precautions about when techniques might become "torture." The 2005 memo specifically superseded discussions of techniques in the 2002 memo.
As I wrote earlier today, the Obama administration promised not to prosecute any intelligence official who relied in good faith on the advice in these memos and who conformed their conduct to that advice. (Here's the President's statement on the release of the memos. President Obama previously said that he disagreed with the legal analysis in the memos and that the U.S. no longer engaged in these techniques.) Some of the practices described in the recently released report of U.S. interrogation techniques by the International Committee of the Red Cross go beyond the techniques analyzed in the memos.
There will be much more to say about these. In the meantime, here they are. Thanks to the ACLU for posting and for pressing for their release.
August 1, 2002 Memo (on whether techniques used on Zubaydah violate the anti-torture statute)
May 10, 2005 Memo (on whether certain techniques, used alone and against a "high value al Qaeda detainee," violate the anti-torture statute)
May 10, 2005 Memo (on whether those same techniques used together violate the anti-torture statute)
May 30, 2005 Memo (on whether techniques violate the CAT)
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