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The OLC “torture memos”: thoughts from a dissenter

The OLC “torture memos”: thoughts from a dissenter

By Philip Zelikow

I first gained access to the OLC memos and learned details about CIA’s program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice’s policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.

Having been the executive director of the 9/11 Commission, I’m aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most — if not all — of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.

Based on what had earlier been released, I have offered some general views on "Legal Policy for a Twilight War." With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.

1. The focus on water-boarding misses the main point of the program. 

Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed "interrogation plans" to disorient, abuse, dehumanize, and torment individuals over time. 

The plan employed the combined, cumulative use of many techniques of medically-monitored physical coercion. Before getting to water-boarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important. 

2. Measuring the value of such methods should be done professionally and morally before turning to lawyers.

A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score — and that would be quite valuable. 

But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods? 

For this analysis, the administration had the benefit of past U.S. government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.

Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.

Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question — "What should we do?" — and the legal question: "What can we do?" We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. "The lawyers say it’s OK."  Well, not really. They say it might be legal. They don’t know about OK.

3. The legal opinions have grave weaknesses. 

Weakest of all is the May 30 opinion, just because it had to get over the lowest standard — "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)

The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law. 

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives. 

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

  • the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA’s methods;
  • the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.
  • the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law — whatever the alleged gain.

The underlying absurdity of the administration’s position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. 

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.