The Torture Commission We Really Need

It’s not enough just to understand what went wrong in the Justice Department. We need to start fixing it, too.

Melissa Golden/Getty Images
Melissa Golden/Getty Images

In 2002, Jay Bybee and John Yoo, a thoughtful, conservative law professor of mine during his first year at Berkeley in the early 1990s, advised George W. Bush’s administration that it could — let’s call it what it was — torture terrorism suspects. In the years since then, we have learned much about what happened, including the memos themselves. We know that Justice Department lawyers approved a range of abusive techniques, including waterboarding, that violated domestic and international prohibitions against torture.

But what we haven’t done is account for how such legal advice could have made its way to the most senior officials of the Bush administration in the first place. The story of that period is a cautionary one for any administration: Presidents and their most senior officials get advice from a system prone to politicized and occasionally ideologically-driven legal advice. Lawyers, for their part, must constantly guard against politicization and improper influence from the "client" — the administration. I witnessed this as an attorney-advisor at in the State Department. And what I saw makes me certain that we need some form of accounting — such as a commission of inquiry — to account for the past.

To see why, look no further than the legal ethics report of the Justice Department’s Office of Professional Responsibility (OPR), issued on February 19 of this year. Though OPR found grave ethical problems with the legal advice provided by Yoo and Bybee, its conclusions were softened to merely "poor judgment" by a senior Justice Department functionary. That angered many in the legal community, who were hoping for a tougher response.

But even if Justice had come down hard on Yoo and Bybee, the focus on them, while appropriate for ethics purposes, encourages the public to see the torture scandal as a failure of particular lawyers. It was that, but it was also much more. It was the failure of an entire structure of government decision-making. There was a deliberate attempt to thwart the normal process of government legal advice. Quite apart from the substance of the advice, the process itself suggests that government officials conspired to commit torture.

Yoo and Bybee participated in a process that delivered only the advice that the client — in this case the Bush administration — wanted to hear. Attributing this phenomenon to the timing ("when the terrorist threat was quite palpable") as David Margolis, the Justice Department official who softened OPR’s conclusions, did, would be plausible if the torture memos reflected a one-time breakdown of the system. But that’s not what happened. Over the many months following the Sept. 11 attacks, the Bush administration systematically ignored the normal interagency legal process, one designed to hash out hard legal questions and make sure principals get not just the advice they want but the analysis they need.

Long before the torture memos were written, we saw from the State Department, where I handled law of war issues, that the interagency process had been distorted. Two examples stand out.

The first came on November 13, 2001, when President Bush signed an order establishing military commissions to prosecute those associated with al Qaeda and the Sept. 11 attacks. To all but a handful of insiders, the military commissions came as a surprise. Lawyers from the State Department, Pentagon, National Security Council, White House Counsel, and Justice Department had been discussing a variety of ways of handling suspected terrorists.

At the working level in the State Department, we had viewed military commissions as one option among many, caveated by the fact that such commissions had not been used by the United States since the World War II era — and much had changed in the legal landscape since then. Most importantly, the United States had signed up to the Geneva Conventions of 1949 and other treaties that framed the legal requirements for the trials of combatants and civilians. Our views were incorporated into preliminary discussions, but those talks were cut short, without explanation, when the president signed his order. By that stage, there had been no sustained interagency vetting of the idea, and few had seen the text of the order itself.

Two months later, in January 2002, my boss, State Department legal advisor William H. Taft IV, who was also a former deputy secretary of defense, learned at a White House meeting that the president would declare that the Geneva Conventions did not apply in the war in Afghanistan, on the basis of advice authored by Yoo to which we were not privy. What that meant was that individuals captured in Afghanistan, regardless of their affiliation, could be brought to the recently opened Guantánamo Bay prison without the protections of the Geneva Conventions. Taft and his own client, Secretary of State Colin Powell, believed strongly in the legal, moral, and humanitarian strictures of the laws of war, and they made their case in a tough but opaque debate that lasted throughout that month. But ultimately, on the basis of Justice Department advice alone, Bush decided that no one at Guantánamo would be protected by the established rules of international law.

All this came long before the Summer of Torture later that year. In those months, as the directives to allow torture were being approved, administration officials sought legal advice only from those already committed to a predetermined outcome, not necessarily those with expertise. The State Department’s involvement early in 2002 had been a mere happenstance, not to be repeated during Yoo’s torture colloquium. We had but two days to respond to a massive memo by Yoo arguing against Geneva, a task made easier only because his memo was so thoroughly untenable under domestic and international law.

We at State were not the only ones kept in the dark about what went on. We had been in the habit of seeking input from colleagues in other agencies, including the military — until, that is, we learned that senior political appointees in the Office of the Secretary of Defense had told the lawyers at the Joint Chiefs of Staff to "stand down," as I was then told, and cease providing comments on the Geneva issue.

Bybee and Yoo certainly went to great lengths to push the limits of legal advice, but what was less complicated was making the bureaucracy work in their favor. The events that I saw unfold in 2002 demonstrate that the system itself was vulnerable to political manipulation. Nearly all of the troubling legal advice was provided by political appointees, not career public servants. The political appointees, often joined together through participation in movement politics or legal organizations such as the Federalist Society, maintained their personal and political allegiances. Many saw career lawyers in government as obstacles rather than sources of expertise. Though the appointee system often recruits some of the brightest and most ethical lawyers in the country — as many later Bush administration and current Obama appointees demonstrate — it also risks the possibility that a fiasco like that of 2002 will be repeated again.

In his first days in office, Barack Obama prohibited torture and other harsh techniques in the interrogation of terror suspects. It is unlikely that torture will recur in this administration. CIA operators have also learned the lessons of the past, though many may now justifiably lack confidence in any advice provided by lawyers.

Nonetheless, the bipartisan consensus against torture has fallen apart in the face of demagogues seeking to score points. So long as we avoid any process of accountability (no trials, no commissions, nothing), we can expect to remain stuck in a depressing spiral of arguments over whether torture is ever justified or legal. Israel was in much the same situation until its Supreme Court specifically held that certain practices — some mild compared to waterboarding — amount to torture, ending the public debate

This matters also because even — and especially — if the United States does not conduct its own thorough investigation of torture, others may rush to fill in the gap. Spanish and British authorities have both been looking into allegations that their nationals or permanent residents were tortured at Guantánamo or other sites maintained by the military or the CIA. They are undoubtedly combing through the latest OPR report to determine whether they can make criminal cases against those who committed or authorized these acts. And since Bybee’s and Yoo’s memos were only aimed at protecting interrogators and officials under the U.S. War Crimes Act, they would not likely stand the test of international legal scrutiny. Accountability by a U.S. process — even if only a mechanism short of prosecution — would strengthen the argument for foreign prosecutors to stand down.

The United States needs a serious high-level accounting for the past so that we can be clear: Do we or don’t we torture? And how did we get it so wrong? In a country where rule of law prevails, an independent prosecutor would have already investigated claims of torture, determined whether crimes might have been committed, and sought charges if warranted against alleged perpetrators. Such a process would put to rest debate over what is legal and what is not. We may not live in that country, but it’s still not too late to account for our past. 

David Kaye is a law professor at the University of California Irvine and the U.N. special rapporteur on freedom of opinion and expression. Twitter: @davidakaye

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