By Dan Froomkin
12:43 PM ET, 04/17/2009
The profoundly disgusting memos made public yesterday -- in which government lawyers attempted to justify flatly unconscionable and illegal acts -- provide a depressing reminder of a time when the powerful and powerless alike were stripped of their humanity.
These memos gave the CIA the go-ahead to do things to people that you'd be arrested for doing to a dog. And the legalistic, mechanistic analysis shows signs of an almost inconceivable callousness. The memos serve as a vivid illustration of the moral chasm into which the nation fell -- or rather, was pushed -- during the Bush era.
President Obama deserves great credit for defying members of the intelligence community who wanted to keep these memos secret. But in calling for the nation to move on without any further looking back, Obama put his political needs above his moral and legal obligations.
"This is a time for reflection, not retribution," Obama said in a statement yesterday about his decision to release the memos. "I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
But the widely held desire for some sort of process of reckoning and accountability is not just a matter of retribution. In fact, these memos are a vivid reminder that the underlying issues are more important than mere politics.
Obama is also legitimately subject to criticism for his attempt to short-circuit the judicial process with his vow that "those who carried out their duties relying in good faith upon legal advice from the Department of Justice... will not be subject to prosecution."
The president understandably doesn't want to get bogged down in what could well be a bitter and partisan process. But if, as he himself insisted yesterday, "the United States is a nation of laws," then he doesn't necessarily get to make that call -- unless he issues a pardon.
Greg Miller and Josh Meyer write in the Los Angeles Times: "Prisoners could be kept awake for more than a week. They could be stripped of their clothes, fed nothing but liquid and thrown against a wall 30 consecutive times.
"In one case, the CIA was told it could prey on a top Al Qaeda prisoner's fear of insects by stuffing him into a box with a bug. When all else failed, the CIA could turn to what a Justice Department memo described as 'the most traumatic' interrogation technique of all -- waterboarding."
Siobhan Gorman and Evan Perez write in the Wall Street Journal: "Mr. Obama wrestled with the decision into Wednesday night, a senior administration official said, convening a meeting of top national security advisers and Greg Craig, his White House counsel. As recently as earlier this week, the president was considering proposals that would have redacted larger portions of the memos. When he made his decision, Mr. Obama called CIA Director Leon Panetta to inform him.
"One key factor was the online publication last week by the New York Review of Books of an International Committee of the Red Cross account of detainee interrogations. The president read the account and concluded 'virtually everything that was in these memos was out in the public domain,' said the senior official.
"As for the decision not to prosecute CIA officers, another senior administration official noted that Mr. Obama's responsibilities changed when he moved from candidate to president and began receiving daily threat briefings. 'It's a different set of responsibilities,' the official said. 'He's sitting in the Oval Office.'"
Mark Mazzetti and Scott Shane write in the New York Times: "The interrogation methods were authorized beginning in 2002, and some were used as late as 2005 in the C.I.A.'s secret overseas prisons. The techniques were among the Bush administration's most closely guarded secrets, and the documents released Thursday afternoon were the most comprehensive public accounting to date of the program.....
"All legal opinions on interrogation were revoked by Mr. Obama on his second day in office, when he also outlawed harsh interrogations and ordered the C.I.A.'s secret prisons closed."
Carrie Johnson and Julie Tate write in The Washington Post that the announcement that the administration "will not prosecute CIA officers who used harsh interrogation techniques with the department's legal blessing... appeared to be designed to soothe concerns expressed by top intelligence officials, who argued in recent weeks that the graphic detail in the memos could bring unwanted attention to interrogators and deter others from joining government service.....
"Both Obama and [Attorney General Eric] Holder for months have indicated a desire to look forward rather than conduct investigations that could alienate the intelligence community and incite partisan rancor."
But Johnson and Tate write there may be some wiggle room in the carefully worded offer of immunity. Obama and Holder "left open the possibility that operatives and higher-level administration officials could face jeopardy if they ventured beyond the boundaries drawn by the Bush lawyers," they write.
Bloggers captured the significance of the memos even better than the mainstream media.
Andrew Sullivan, blogging for the Atlantic, calls the newly released Bybee memo "as chilling an artifact as you are ever likely to read in a democratic society, the work clearly not of a lawyer assessing torture techniques in good faith, but of an administration official tasked with finding how torture techniques already decided upon can be parsed in exquisitely disingenuous ways to fit the law, even when they clearly do not....
"Bybee is not representing justice in this memo. He is representing the president. And the president is seeking to commit war crimes. And he succeeded. This much we now know beyond any reasonable doubt."
Spencer Ackerman blogs for the Washington Independent: "These are medieval documents, these Office of Legal Counsel memos... OLC, like a medieval priest, finds the right incantation to transform a dark act into a holy one."
Kevin Drum blogs for Mother Jones: "Reading the OLC torture memos is enough to make you ill. The techniques in question are plainly and instinctively abhorrent by any common sense definition, and the authors of the memos obviously know it. But somehow they have to conclude otherwise, so they write page after mind-numbing page of sterile legal language designed to justify authorizing it anyway. It's not torture if the victim survives it intact. It's not against the law if it takes place outside the United States. Waterboarding is OK as long as it isn't performed more than twice in a 24-hour period. Sleep deprivation of shackled prisoners for seven days at a time is permissible as long as the victim's diaper is changed frequently. And on and on and on."
The call for prosecution is loud and strong among the liberals and civil libertarians.
Keith Olbermann appealed to Obama on his MSNBC show last night: "Mr. President, when you say we must 'come together on behalf of our common future' you are entirely correct. We must focus on getting things right in the future, as opposed to looking at what we got wrong in the past.
"That means prosecuting all those involved in the Bush administration's torture of prisoners, even if the results are nominal punishments, or merely new laws. Your only other option is to let this set and fester indefinitely. Because, Sir, some day there will be another Republican president, or even a Democrat just as blind as Mr. Bush to ethics and this country's moral force. And he will look back to what you did about Mr. Bush. Or what you did not do.
"And he will see precedent. Or as Cheney saw, he will see how not to get caught next time. Prosecute, Mr. President. Even if you get not one conviction, you will still have accomplished good for generations unborn."
The Center for Constitutional Rights responded to the memos with this statement: "Whether or not CIA operatives who conducted waterboarding are guaranteed immunity, it is the high level officials who conceived, justified and ordered the torture program who bear the most responsibility for breaking domestic and international law, and it is they who must be prosecuted. In the president's statement today, the most troubling contradiction is the contrast of the words, 'This is a time for reflection, not retribution,' followed shortly by, 'The United States is a nation of laws.' Government officials broke very serious laws: for there to be no consequences not only calls our system of justice into question, it leaves the gate open for this to happen again."
The ACLU repeated its call for an independent prosecutor. Said Anthony D. Romero: "We have to look back before we can move forward as a nation. When crimes have been committed, the American legal system demands accountability. President Obama's assertion that there should not be prosecutions of government officials who may have committed crimes before a thorough investigation has been carried out is simply untenable. Enforcing the nation's laws should not be a political decision. These memos provide yet more incontrovertible evidence that Bush administration officials at the highest level of government authorized and gave legal blessings to acts of torture that violate domestic and international law."
Glenn Greenwald blogs for Salon: "I agree entirely that it is the DOJ lawyers who purported to legalize torture and the high-level Bush officials ordering it who are the prime culprits and criminals, as compared to, say, CIA agents who were proverbially just following orders and were told by the DOJ that what they were doing was legal. But leave aside the question of whether prosecutions would produce good or bad outcomes. After all, the notion that the law can and should be ignored whenever we think doing so would produce good results or would constitute good policy was the engine that drove Bush lawlessness. If, as Barack Obama proclaimed yesterday, 'the United States is a nation of laws' and his 'Administration will always act in accordance with those laws,' isn't it the obligation of those opposing prosecution to justify that position in light of these legal mandates and long-standing principles of Western justice? How can they be reconciled?"
Georgetown Law Professor David Cole writes for the New York Times: "It is not enough to say that when we have a president who does not believe in cruel and inhuman treatment and torture, the United States will not engage in such practices – while leaving open the possibility that if we again elect a president who does believe in such practices, they can be revived as a policy option. We must formally acknowledge that what was done was wrong, indeed criminal. At the very least, a credible independent investigation must be undertaken. The Convention Against Torture, which we have signed and ratified, demands nothing less wherever there is any evidence that persons within our jurisdiction inflicted cruel, inhuman, or degrading treatment on another human being. These memos are that evidence."
Berkeley public policy professor Michael O'Hare blogs: "Obama has made it national policy to ignore violations of international law, human decency, and stepped on everything we've believed since Nuremberg, promising no prosecutions of CIA torturers and hinting at no prosecutions of their enablers and commanders....
"Torturing people systematically is not just criminal but outrageous, unspeakable. Having orders to do it is no excuse: we need every citizen and every spook to think before obeying orders that may for whatever reason be illegal, especially orders that are cruel, vengeful, and compromise the mission: this principle is so obvious movie plots are built on its universal validity."
Blogger Digby offers a thin reed upon which some Obama supporters can conceivably hang: "[I]t's obviously very difficult for the administration to take on the intelligence community unless there is a large public constituency demanding action.... I recognize that it's not easy, especially for a Democrat, although I think it's so important to the future security of the nation that I would have hoped the president would use some of his political capital to prove that the United States is a country of laws not men.
"However, I have to wonder if by releasing the memos they aren't at least obliquely asking for the public to 'make' them do it. They could have kept them secret, after all. If there were significant public pressure as well as pressure from congress, they would have enough cover to launch an investigation."
Meanwhile, former Bush administration officials Michael Hayden and Michael B. Mukasey write in a Wall Street Journal op-ed that the release of the memos will "invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001...
"By allowing this disclosure, President Obama has tied not only his own hands but also the hands of any future administration faced with the prospect of attack.
"Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies."
They also once again trot out the canard that torture worked, and that Abu Zubaida, the CIA's first official torture victim and the subject of the first of yesterday's memos, "was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which -- when combined with what was learned from Abu Zubaydah -- helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S."
But as I've written previously, Bin al Shibh was captured almost half a year after Zubaida was, and author Ron Suskind reported that the key information about his location came not from Zubaida but from an al-Jazeera reporter who had interviewed bin al Shibh and KSM at their safehouse apartment in Karachi. Zubaida also did not provide information that led to KSM's capture. Suskind reported that a tipster led the CIA directly to KSM and subsequently collected a $25 million reward.