The four secret US Department of Justice opinions released this week are jaw-dropping in their detail. They reveal how far the Bush administration was prepared to go in sanctioning interrogation techniques that plainly amount to torture.
The long-awaited publication of the August 2002 memo, signed by Jay Bybee but largely written by John Yoo, authorizes 10 previously unlawful interrogation techniques. These include slapping, stress position and sleep deprivation, right up to waterboarding. It is doubtful a more shocking legal opinion has ever been written. It even purports to analyze if incarcerating a detainee in a small box with an insect for company would amount to mental torture (it depends what you tell him about its sting).
This is the stuff of dark nightmares, the rubber-stamping of policy rather than legal advice in the sense usually understood. It indicates how far the Bush administration fell, the kind of reasoning that infected a raft of policies and to which the British government often turned a blind eye. It has caused untold damage to US national security, and to its reputation.
When the memo was written, the administration had already fixed a policy of abuse, and the torture had already started. Lawyers were needed to provide the “golden shield” against prosecution. The memo did not benefit from the usual consultations; the many lawyers who would have objected were simply cut out of the process. A small group of lawyer-ideologues became participants in international crime, acts for which any state may, under the 1984 torture convention, exercise criminal jurisdiction. The evidence suggests complicity with the consequences that flowed from these flawed opinions — which went on to underpin CIA and military interrogations in Guantánamo, Iraq and beyond in the rendition program.
On releasing the opinions, President Obama explained he was motivated by a desire for truthfulness. He has made clear that the CIA interrogators who relied on them in good faith should not be prosecuted, and in so doing confirmed that crimes have been committed. He chose his words with evident care: He could have said there would be no prosecutions — but he didn’t. He did not offer a general get-out-of-jail-free card; rather, he has pointed the finger of responsibility at the lawyers, one of his early acts being to prohibit future interrogators from relying on any Department of Justice advice prepared between 9/11 and January 2009.
Obama walks a tightrope on an issue that may yet come to dog his first term: What to do about torture practiced during a “dark and painful” period? He balances an understandable desire for bipartisanship with obligations under the torture convention to pursue criminal investigations. “This will be worked out over time,” he told Spanish CNN on Thursday, referring to possible criminal investigations by Spanish Judge Baltasar Garzón of the “Bush Six”, the administration officials who played a central role in devising the policy of abuse. It seems no coincidence that this week’s developments occurred within a few hours of the move by Spain’s attorney general to head off a criminal investigation of the Bush Six, reasoning that the real targets should include those who physically carried out the torture.
If there was coordination, it seems to have gone askew. Obama is right not to target the interrogators in the sense that real responsibility lies much higher up. The senior lawyers and their patrons should derive little comfort from his intervention: They remain at risk of criminal investigation — or worse, in a legal black hole of their own making.
— Philippe Sands QC is professor of law at University College London and author of “Torture Team: Uncovering War Crimes in the Land of the Free.”
