Obama DOJ Delays Responding to Request for Key OLC Memos Re Torture and Interrogation Policies

The Obama administration, under pressure to turn over key memos written by the Justice Department’s Office of Legal Counsel, has asked the federal judge in New York for another 90 days to consider its position on a Freedom of Information Act case brought by a coalition of civil liberties advocates.  But the judge may not be inclined to grant the request.

As I reported earlier, the three memos at issue were written by then-OLC director Steven Bradbury and reportedly authorized abusive interrogations of suspected terrorists and decided that such extreme tactics would not violate the law. The Bush administration repeatedly refused to turn them over, but given President Obama’s promises to open government and increase disclosure under FOIA, the Justice Department now is under considerable pressure to change its position and release the documents, which could be critical to any future investigations or prosecutions of Bush officials.

The New York Times reported in October 2007 that the memos provided “explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.” These did not, the memos concluded, amount to “cruel, inhuman or degrading treatment” — which would have been banned by international law, as well as a bill Congress was then considering.

The American Civil Liberties Union, which sued for the memos along with several other organizations, argues the memos don’t fall under an exception to FOIA because they constitute adopted policy, not confidential legal advice. Although the ACLU agreed to give the Justice Department some additional time to respond to the request, it argued in court this week that 90 days is too long.  The case has already been going on for more than five years.

“The Obama administration deserves credit for its disavowal of torture and for the commitment it has made to transparency, but the public has waited long enough for the disclosure of these memos,” said Jameel Jaffer, Director of the ACLU’s National Security Project, in a statement released today.

“There is a public debate taking place right now about the role of the CIA going forward and about accountability for the abuses of the last eight years. The immediate release of the memos would allow the public to participate more meaningfully in that debate. While we applaud the administration for its promise of transparency, it’s now time to make good on that promise.”

On Friday, Judge Hellerstein ordered both sides to appear in his court next Wednesday to discuss how long a delay is warranted. “I take that as a good sign,” Jaffer told me Friday. “But we’ll see what happens on Wednesday.”