In 2009, Alliance for Justice released a ten-minute documentary, Tortured Law, showing how lawyers in the Justice Department’s Office of Legal Counsel (OLC) tortured the law itself to justify the use of unthinkably cruel interrogation techniques on alleged terror suspects.
Although these techniques were clearly torture under U.S. law, international law, and basic standards of human decency, the OLC lawyers developed an extremely stringent and self-serving definition of torture in their effort to allow this inhuman conduct. The Bush Administration followed this legal advice, and engaged in torture.
At the end of the documentary we asked: “How can we move forward without documenting what went wrong and holding accountable those who led America astray?”We called on Attorney General Eric Holder to launch a full investigation.
He refused. Congress also looked the other way.
Fortunately, a group of private citizens has taken up the challenge.The Constitution Project brought together a Task Force on Detainee Treatment. The Constitution Project did not “round up the usual suspects” to serve on the task force. It is co-chaired by former Republican Rep. Asa Hutchinson of Arkansas. Rep. Hutchinson served in multiple roles in the administration of President George W. Bush. And if his name seems familiar, it may be because of another task force he chaired – the one convened by the National Rifle Association after the Newtown shootings. Other members include William Sessions, named to run the FBI by President Reagan, and Thomas Pickering, Ambassador to the United Nations during the George H.W. Bush Administration.
The task force report was released this morning. It is a compelling and disturbing narrative that should shock the national conscience and renew demands for accountability. It covers a wide array of issues. We focus here on the issues covered in Tortured Law.
The task force concluded that the conclusions drawn by AFJ – and many others, were correct. As the task force put it:
Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture. [Emphasis in original.]
The task force is scathing in its condemnation of the top-level lawyers who denied that torture was torture:
Lawyers in the Justice Department provided legal guidance, in the aftermath of the attacks, that seemed to go to great lengths to allow treatment that amounted to torture. To deal with the regime of laws and treaties designed to prohibit and prevent torture, the lawyers provided novel, if not acrobatic interpretations to allow the mistreatment of prisoners.
The report includes a comprehensive series of recommendations, including some to ensure that the Office of Legal Counsel abides by the law – and that officials are held accountable in the future when they follow clearly erroneous legal advice. These recommendations include:
- Consultation: OLC must should always consult with subject matter experts at the agencies impacted by its legal advice, and when it gives advice that is contrary to that of experts, it should “include and clearly outline opposing legal views to its own” and explain why it rejected that advice.
- Accountability: Congress should amend federal law to make clear that in the future, “in situations where a person or ordinary sense and understanding would know that their treatment of a detainee inflicts or is likely to result in severe or serious physical or mental pain or suffering, reliance on advice of counsel that their actions to not constitute torture or war crimes shall not be a complete defense.”
- Transparency: OLC periodically should review old opinions that have been kept secret to see if they can be declassified. “If any and all opinions from the OLC might someday, at the appropriate time, be disclosed,” the task force says, “OLC attorneys would be more mindful of their responsibility to act in an impartial manner on behalf of the nation and less likely to engage in advocacy that could later prove to have been misguided.”
AFJ supports these recommendations and calls on the Obama Administration and Congress to implement them.It is the least we can do to live up to our founding principles of freedom and democracy.
New York Times story on the task force report
More AFJ resources on torture