Tortured Law Overview
From 2002 to 2007, the United States Department of Justice (DOJ) sanctioned acts of torture committed by members of the U.S. Central Intelligence Agency (CIA) against detained suspected terrorists. These acts of torture were outlined and authorized in a series of secret "torture memos" drafted by John Yoo, Jay Bybee, and Steven Bradbury, senior lawyers in the DOJ's Office of Legal Counsel (OLC).
In 2004, the DOJ's Office of Professional Responsibility (OPR), the department's internal ethics review board, began an inquiry to determine whether Yoo, Bybee, and Bradbury committed any ethical violations in producing the "torture memos." Five years later, DOJ still has not released the OPR's report, even though news has leaked that a draft was finished nearly a year ago.
Attorney General Eric Holder recently announced a preliminary investigation of the CIA interrogators who exceeded the authority of the "torture memos." But the officials who ordered the interrogators to engage in torture, and the DOJ lawyers who provided the CIA with the legal cover to do so, have not been held accountable. Many commentators, lawyers, and professors have strongly urged a full investigation that follows the facts where the evidence leads.
President Obama has ended the torture practices against suspected terrorists. Yet American democracy and the rule of law rest on the principles of transparency and accountability. Americans have a right to know the facts about what U.S. government lawyers did to provide legal cover for torture, and those who violated their ethical or legal duties must be held accountable. To ensure transparency, Attorney General Holder should release the OPR Report, and to preserve the rule of law, he should launch a full-scale investigation of those who ordered, designed, and justified torture.
The Office of Legal Counsel's "Torture Memos"
The Office of Legal Counsel (OLC) is known as the "constitutional conscience" of an administration, offering authoritative opinions on complex and important legal matters about which agencies within the executive branch might disagree, and exercising judgment independent of the political will of the president. However, between 2002 and 2007, OLC lawyers authorized every interrogation practice proposed by the CIA, even those that many legal experts agree violate our federal laws prohibiting torture and conspiracy to commit torture and war crimes; our constitutional ban on cruel and inhuman treatment; and the Geneva Conventions' absolute prohibition of torture. These laws may have arguably required an attorney, bound by an ethical duty to be candid with one's client, to tell the CIA that certain interrogation practices were unlawful – but instead of ever saying "No" because the law required it, the OLC lawyers always said "Yes." As Georgetown law professor David Cole has written, the OLC memos are the "smoking gun" of unlawful American torture policy.
The OLC "torture memos" have been widely criticized as horrendously flawed. One of the first torture memos, drafted by John Yoo and OLC head Jay Bybee in August 2002, considered abuse to amount to torture only if it results in organ failure or death. As American University law professor Bill Yeomans has noted, the legal reasoning in these memos has been "widely denounced as not befitting a first-year law student." In an open letter to the president, 130 prominent U.S. jurists – including twelve former federal judges and eight past presidents of the American Bar Association – condemned the 2002 memos because they ignored and misinterpreted the U.S. Constitution and laws, international treaties, and rules of international law. Jack Goldsmith, head of OLC in 2004, took the highly unusual step of rescinding some of the 2002 OLC opinions because, as he later wrote, in their "redundant and one-sided effort to eliminate any hurdles posed by the torture law, … the opinions could be interpreted as if they were designed to confer immunity for bad acts."
Subsequent memos by Yoo, Bybee, and 2004-09 OLC head Steven Bradbury describe and authorize "enhanced interrogation techniques," such as depriving detainees of sleep for days on end, stripping them naked, dousing them in chilling water, slamming them repeatedly against the wall, confining them in small coffin-like boxes (sometimes with insects), shackling them in stress positions for hours on end, and waterboarding them hundreds of times. According to the OLC lawyers' cramped interpretations of settled law, these practices do not amount to torture. They do not even amount to cruel, inhuman, or degrading treatment. Professor Cole has called Bradbury's 2005 "torture memos" the worst of the lot, confirming that OLC was "engaged in a process of intellectual cover-up and rationalization, not good-faith lawyering."
Accountability for Torture and Restoring the Rule of Law
Georgetown law professor David Luban has called the "torture memos" an "ethical train wreck," written as if they were reverse-engineered to provide legal cover for unlawful acts of torture. As noted by Yale law professor Jack Balkin, the OLC "torture memos" never stated that torture is wrong and that our government should not engage in it; instead, they offer official advice about how to engage in torture and escape criminal prosecution and how to define prisoner abuse as not technically torture in order to escape criminal prosecution.
Other legal experts have suggested that the torture memos present evidence of a criminal conspiracy to engage in torture and should be investigated accordingly. Engaging in a common plan or design to implement a program of torture is a felony under federal law, and an investigation would determine whether a conspiracy existed. Senator Sheldon Whitehouse (D-RI), a former U.S. attorney, has written that sufficient evidence is publicly available at this time to suggest theories of criminal liability and therefore justify an investigation of the torture of detainees. According to Senator Whitehouse, there is substantial evidence, for example, of legal malpractice by John Yoo and back channel communications between OLC and White House lawyers which sidelined regular agency chains of reporting. "From a prosecutor's perspective," Senator Whitehouse wrote, "the stonewalling we have seen – aggressive assertions of executive privilege, refusals to cooperate with inspectors general, cover stories that don't withstand scrutiny – raises suspicions further." Scott Horton, a legal scholar and commentator, has gone further and suggested that the torture memos were instrumental in the crimes committed against detainees and that the authors may accordingly be implicated by criminal liability. Although it is too soon to determine whether any criminal charges should be brought, the available evidence invites an investigation – especially since, as Horton and other human rights attorneys have written, the United States is bound by an international treaty that requires a criminal investigation whenever there is credible evidence of a violation of its absolute prohibition of torture.
Some argue that it is inappropriate to prosecute lawyers for giving good faith legal advice – but, as legal experts such as Professors Cole and Luban and leaders such as Senators Whitehouse and Patrick Leahy (D-VT) have said, the poor quality of the advice these lawyers provided and the circumstances under which it was given warrant investigation into whether they were acting as lawyers in good faith or conspirators in facilitating torture.
Accountability and restoration of the rule of law will begin when Attorney General Holder releases the five-year old OPR report. It has been reported that a draft was finished in late 2008 but that then-Attorney General Michael Mukasey, in an effort to delay its release, decided to allow Yoo, Bybee, and Bradbury time to provide written comments in response. At multiple points over the course of 2009, it has been reported that the report is ready to be released within a matter of weeks, and yet, as of October 2009, it still has not been made public. Attorney General Holder can begin the process of restoring American values and moral authority by releasing the OPR Report.
A Full-Scale Investigation Needed Now
Over the last several years, reporters, authors, lawyers, and activists have uncovered information about the OLC torture policies. Based on this still-incomplete record, it is undisputable that detainees in U.S. custody were tortured, and the United States' reputation in the world suffered as a result.
Join Alliance for Justice in urging Attorney General Holder to release the OPR Report and conduct a full-scale investigation of those who ordered, designed, and justified torture. Any other decision will sell America and its values short.