Criminal Law Library Blog

Source: FindLaw Legal News and Commentary.

By JOANNE MARINER, Terrorism and Counterrorism Director at Human Rights Watch.
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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.
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