This is a guest post by Jameel Jaffer
Last week the Obama administration released four legal memos that supplied the basis for the Bush administration’s torture programme. The memos, which were disclosed in response to a lawsuit that the American Civil Liberties Union (ACLU) filed five years ago, include detailed descriptions of the interrogation methods that CIA interrogators were authorised to inflict on prisoners in their custody. Described methods included ‘the facial slap’, ‘the water board’, and perhaps most grotesque, ‘cramped confinement box with insect’.
These revolting memos shouldn’t have been written in the first place, but the Obama administration was right to release them. The public can now better understand the nature of the CIA’s interrogation and detention programme, and the role that Justice Department lawyers played in developing and implementing it. CIA officials reportedly pressed President Obama to withhold key passages in the memos, but the president rightly recognised that redacting these passages would have enmeshed the new administration in a cover-up of the Bush administration’s crimes.
In a self-serving op-ed published in the Wall Street Journal, Michael Mukasey (who served as attorney general from 2007 to 2009) and Michael Hayden (who served as director of the CIA from 2006 and 2009), contend that President Obama’s disclosure of the memos makes the United States less safe; they argue that the disclosure of the memos, and of the interrogation techniques discussed in them, unwisely broadcast to terrorists ‘the absolute limit of what the US government could do to extract information from them’, and they warn that terrorists will now ‘supplement their training’ so that they can resist the described techniques. They add that the disclosure of the memos will make CIA interrogators timid and risk-averse, unwilling to use ‘aggressive’ methods even when Justice Department lawyers assure them that such methods are lawful.
But the methods described in the memos are illegal under both domestic and international law, and they were illegal when the Bush administration endorsed them. For years, the US State Department’s human rights reports have described these methods as torture. And after the Second World War, the United States prosecuted Japanese commanders for having inflicted some of the methods that the memos purport to authorise. It does not compromise national security to broadcast to the world that the US will eschew methods that are criminal under US and international law, that the State Department has described as torture, and that the United States has previously prosecuted as war crimes. Indeed, to propose that the nation’s security would be compromised by that message is to propose that the nation’s security would be compromised by the rule of law.
Nor will it be unfortunate if CIA interrogators hesitate before relying on legal advice that strikes them as implausible or wrong. Indeed, there is something astounding about a former attorney general characterising this kind of hesitation as ‘timidity’. Anyone who reads the memos will understand immediately that the CIA and Justice Department each sought to absolve itself from responsibility for torture by basing its actions on transparently worthless assurances from the other. It would be a good thing if CIA interrogators hesitated before entering into this kind of arrangement again.
Jameel Jaffer is director of the American Civil Liberties Union’s (ACLU) national security project and co-author, with Amrit Singh, of Administration of Torture (Columbia University Press 2007) available at Amazon