ACLU Obtains Key CIA Torture Memos

The ACLU announced today it has obtained three key memos concerning the CIA's abusive interrogation techniques. You can view them here.

Among other things, they establish that the CIA was told to document the use of enhanced interrogation techniques, including who was present. The first memo shows waterboarding was an approved technique.

One of the documents obtained by the ACLU today is a redacted version of a previously undisclosed Justice Department Office of Legal Counsel (OLC) opinion from August 2002 that authorizes the CIA to use specific interrogation methods, including waterboarding.


The memo states that interrogation methods that cause severe mental pain do not amount to torture under U.S. law unless they cause "harm lasting months or even years after the acts were inflicted upon the prisoners." Initially, the CIA took the position that it could not confirm or deny the existence of this memo; it dropped that position after President Bush disclosed in September 2006 that the CIA had been operating detention centers overseas.

Two other newly obtained documents are requests by the CIA for legal advice on interrogation techniques.

The other two documents, from 2003 and 2004, are memos from the CIA related to requests for legal advice from the Justice Department. The 2003 memo shows that CIA interrogators were authorized by OLC to use torture practices known as "enhanced interrogation techniques." The memo also indicates that, for each session in which these techniques were used, the CIA documented, among other things, "the nature and duration of each such technique employed" and "the identities of those present." The documentation relating to the CIA's torture sessions, including the names of agents who participated, is still being withheld.

The 2004 memo shows that CIA interrogators were told that the Justice Department had concluded that certain interrogation techniques, including "the waterboard," did not constitute torture. The document also indicates that, after the Supreme Court ruled in June 2004 that courts can decide whether foreign nationals held in Guantánamo Bay were rightfully imprisoned, CIA interrogators were told to take into account the possibility their actions would ultimately be subject to judicial review.

The ACLU says:

"These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody," said Jameel Jaffer, Director of the ACLU National Security Project. "The Justice Department twisted the law, and in some cases ignored it altogether, in order to permit interrogators to use barbaric methods that the U.S. once prosecuted as war crimes." ...

"While the documents released today do provide more information about the development and implementation of the Bush administration's torture policies, even a cursory glance at the documents shows that the administration continues to use 'national security' as a shield to protect government officials from embarrassment, criticism and possible criminal prosecution," said Jaffer. "Far too much information is still being withheld."

< Obama Speaks in Berlin | Thursday Afternoon Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    My quick analysis - (none / 0) (#1)
    by scribe on Thu Jul 24, 2008 at 02:38:27 PM EST
    No wonder Bybee got himself a nice, cushy judgeship on an appeals court.  He proved himself a willing tool of the Rethuglicans and was moved to (a) make room for more like him to work in OLC and (b) be in the judiciary so he could pass, as being legal and constitutional, on the very policies he helped write about.
    Ironic, isn't it, this classification of legal memoranda - a litigant can't ask that a judge be recused for bias, if the litigant can't know (because of classification) that the judge helped design the system the defendant is now challenging.

    Bybee ought to be impeached.  Seems like he may well have perjured himself (or made material omissions) in his confirmation testimony.

    On to my comments on the memos.

    Largely, they are redacted.

    First memo:
    Jay Bybee to CIA about what it takes to violate the torture statute.  August 1, 2002.
    18 pages, and almost all of it is blacked out.  (I would lurrve to read the "facts" section. Seems they were looking to torture someone specific and had to lay out all the facts of his confinement to the OLC.  Note how Bybee takes pains to make clear that if the facts change, the opinion might change.  

    Question:  was KSM in custody by then?  Or was John Walker Lindh the biggest fish caught by 1 Aug 2002?  Of course, if Lindh (prosecuted in a 9th Circuit jurisdiction) was the guy, there are all sorts of issues, no?

    Bybee does, however, indicate ways to avoid having specific intent to torture.  
    The hows are in the blacked-out parts, which I speculatively believe would likely include the direction "always say you were trying to get information" or words to that effect.

    Second memo:
    From CIA to OLC, regarding methods, dated 2004.


    2.    The interrogation of [redacted(1)] should proceed only with a clear understanding [redacted (2)] of all the legal and policy matters involved with the interrogation techniques, including:

    -    The classified August 2002 DoJ opinion stating that [redacted (3)] interrogation techniques including the waterboard, do not violate the Torture Statute.

    [I omit subsequent bullet points]

    (1) This redaction seems short enough to be (only) a three-letter acronym;  I suggest "HVD" meaning "High-Value Detainees".

    (2) This redaction could be (textually and by length): "by the interrogators".  It could also be "by supervisory personnel" or something similar.  The subsequent bullet points in the memo would textually support this conclusion, as these are all issues an interrogator and a supervisor would need to consider in deciding which methods to use.

    (3) This redaction could be: "the standard and enhanced".

    Third memo:
    A 4 page memo from CIA HQ to lower-downs, separating "enhanced" and "standard" interrogation techniques and directing that only "approved" techniques (enhanced or standard) may be used, unless CIA HQ says otherwise.

    At the end (I quote):

    In each interrogation session in which an Enhanced Technique is employed, a contemporaneous
    record shall be created setting forth the nature and duration of each such technique employed, the identities of those present .... [redaction].
    s/ George Tenet            January 28, 2003
    Director of Central Intelligence Date

    You don't get much better than that, when it comes to authorizing an act (legal or otherwise).

    It also means that not only were the tortures not the product of a few bad apples, but that the Admin has known - since jump - all the whos, whats, wheres, whens, whys and hows.  It also plays further into Judge Brinkema's speech at Colby College - where she noted that the Moussaoui jury "got it right" in denying capital punishment to him - and that she agreed with that because the government had been holding out on producing all the information they were required to produce.  As she said in her speech:

    "One of the saddest realities I've had to face--in the Moussaoui case in particular--has been the reality that my government didn't always tell me the truth," Brinkema said.

    Back to the memo:
    There is also an acknowledgement page, to be signed by the person doing the interrogations,
    that he's read the policy and understands it.  That's page 4.

    Interestingly, this puts the interrogator in an analytically tricky position.  On the one hand he has to have to have an empty head as to whether the conduct he was going to perform was criminal torture.  He has to have the purest intention that he's not doing it to torture.  On the other hand, he's cabined in by all these strong statements of how bad - torture - all the things just across the line is.  But he's told to not have specific intent to torture.

    It strikes me that one cannot make like an ostrich when being told to (or deciding to) perform torturing acts.  The more the bosses tell the subordinate (and make him acknowledge reading) about how the law prohibits "X" and, thus, the more knowledge he has, the more it negates any chance of innocent intent.

    Interestingly, the second memo indicates what content there was in the first memo (written by Bybee), which content had been redacted from the first memo. Unless there is yet another memo not yet disclosed or the authorization to use the
    waterboard was contained in an earlier-disclosed memo which I've forgotten about.

    Also, I get the feeling that these memos reflect a possible delegation from HQ to the field on whether and when to use which - standard or enhanced -techniques.

    Please discuss....

    Intent (none / 0) (#2)
    by litigatormom on Thu Jul 24, 2008 at 04:13:06 PM EST
    Bybee does, however, indicate ways to avoid having specific intent to torture.  
    The hows are in the blacked-out parts, which I speculatively believe would likely include the direction "always say you were trying to get information" or words to that effect.

    My guess is that the how-to parts include:

    -- say you are relying in good faith on the advice of counsel that the "techniques" you are about to use don't violate any laws;

    -- always say, "I don't intend to cause you any physical harm or pain tantamount to death."

    Good faith reliance on the advice of counsel is a recognized defense to a number of crimes, particularly financial crimes.  You omit to disclose a material fact concerning the purchase or sale of a security; you defend by saying, but my lawyers told me the fact wasn't material or otherwise required to be disclosed. BUT when you invoke this defense, you have to waive any claim of privilege as the advice upon which you claim to have relied.

    You can also defend against a number of "specific intent" crimes by saying, "Oh, I didn't mean to kill him, I just meant to scare him a little bit." You may be still be guilty of criminally negligent homicide or manslaughter, but innocent of murder.

    The question here would be whether anyone who was following these guidelines could have reasonably relied on them. It's one thing to say "I relied on the advice of counsel."  But you have to have been reasonable in believing that the advice was good. If the advice was credible, relying on it is a good defense even if the advice was wrong.  

    But if you say, "my brother-in-law the ambulance chaser told me that my complex scheme to raise capital by selling unregistered securities was perfectly legal," your reliance may not have been reasonable, and may not shield you from liability.

    So could Tenet and all these CIA agents have reasonably relied on these dodgy, fudgy, dancing on the head of a pin legal memos?  You can tell what I think.

    BTW, have any of you seen the article in this months' Vanity Fair in which Christopher Hitchens (someone I don't usually quote) writes about his experience being waterboarded?  His conclusion: waterboarding is torture.  Duh.

    Video of CH being waterboarded:


    CH article on being waterboarded:

    We're on the same side on this one (none / 0) (#3)
    by scribe on Thu Jul 24, 2008 at 04:44:57 PM EST
    My argument, perhaps not eloquently phrased, was that the more warnings and memoranda and disclosures and so on the interrogators were confronted with, the less they can be an ostrich.  Willful ignorance is knowledge, etc.

    What was the overall purpose of the memos? (none / 0) (#4)
    by VicfromOregon on Thu Jul 24, 2008 at 07:16:47 PM EST
    From all the above analysis it sounds like the memos were created to allay the fears of the interrogators that their actions might - 1) be illegal, 2) be immoral, and, 3) get them arrested.  If so, then they would need a certain amount of information about what they were about to do and why it was "enhanced" rather than "abusive", making them willful participants, while also being directed to do it, along with being given guidelines of how to both justify the torture and assure themselves there wouldn't be reprisals.

    If this is true, then on some level, clearly the Bush Administration found it needed to address both the fears and the conscience of, not only the public, but of the interrogators themselves?

    These people are so slick you can slip and get hurt just reading the memos.