High Priests of OLC Turned CIA Torture Into Holy Acts

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Thursday, April 16, 2009 at 6:39 pm

These are medieval documents, these Office of Legal Counsel memos. And not just in the sense that torture techniques like the waterboard date back to medieval times, but in the way that the OLC acted for the CIA. These memos are basically colloquys between John Rizzo, then the acting CIA legal counsel and either Jay Bybee (in 2002) and Steve Bradbury (in 2005), the OLC chiefs, in which Rizzo asks OLC what the CIA can legally inflict on detainees. OLC, like a medieval priest, finds the right incantation to transform a dark act into a holy one. When Bybee’s OLC Jack Goldsmith, then-head of OLC, in 2004 withdraws the original basis for the CIA’s torture program, Rizzo comes right back to Bybee’s Goldsmith’s replacement, Bradbury, to restore the OLC’s holy writ, which Bradbury provides on May 10, 2005. [Apologies for the error. I owe Marcy Wheeler for the correction.] Consider this, from the May 10, 2005 memo that dismisses the idea of a detainee experiencing “severe physical pain” from combinations of these techniques:

No apparent increase in susceptibility to severe pain has been observed either when techniques are used sequentially or simultaneously — for example, when an insult slap is simultaneously combined with water dousing or a kneeling stress position, or when wall standing is simultaneously combined with an abdominal slap and water dousing.

Bradbury knows because the medical and psychological personnel who assist in the interrogations report that to the CIA, and the CIA reports that to Bradbury. The system is holy, holy, holy, all the way up to God.

And here’s how it’s problematic for President Obama, Director of National Intelligence Dennis Blair and CIA Director Leon Panetta to indicate to the CIA that they’ll stand by CIA officers who relied on OLC guidance for the torture. Marc Ambinder observes that there’s some wiggle room in that promise, although every indication from the administration is that it doesn’t want to prosecute CIA officials. And for the most part, I think that’s right. The CIA officer assigned to an interrogation is no more responsible for the regimen of torture that he is asked to inflict — and told all the while is legal — than the soldier in Baghdad is responsible for the invasion of Iraq.

But that doesn’t go far enough.

Most of this story — the torture techniques (except for the insects); the OLC blessings and reblessings — has been thoroughly reported already. What the memos leave unclear is how much the CIA jumped into the torture game and how much the Bush administration pushed it. The memos are written to be responsive to the CIA lawyer — the malefactor going to the priest to give his work absolution. They’re written to guide the interrogators. But they leave unclear — as does most of the narrative so far — who’s compelling Rizzo in the CIA counsel’s office to keep pushing for more. The senior leadership of the agency? The heads of its directorate of operations, which overseas the interrogators? The Counterterrorist Center leaders? Without this information, we don’t have a clear sense of moral culpability for the torture. And then we’ll need to know what kind of pressure they were under from the Bush administration. Who was pressured? Who was eager to comply? Who resisted? Who pressed his or her colleagues into acquiescence or insubordination? All of these questions are related but separate to the question of legal culpability.

The point is that the depths of this story are still unexplored, and only a congressional investigation, with appropriate subpoena power, can get at the truth. That’s what the American Civil Liberties Union is calling for; that’s what Sen. Pat Leahy (D-Vt.) is calling for. It’s not a question of a witch hunt, nor is it a backdoor way into prosecutions. It’s about closing this ugly chapter in American history. Leaving questions unresolved ensures that can never happen. If it’s the case that CIA officials are culpable for the torture, they should be held appropriately accountable; the same goes for Bush administration officials. The only blanket statement that’s appropriate in the wake of these memos is that torture is unacceptable, illegal and un-American.

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Comments

14 Comments

Robert Braam
Comment posted April 16, 2009 @ 6:33 pm

It seems to me that Obama doesn't want to look partisan. Fine. He releases the memos. Good. Now he cannot stand in the way of prosecution, which is best.
Incidentally, unless the Republican Party is on the front lines in seeing justice is done, they will be seen as facilitating the criminality.


The Torture Memos t | The League of Ordinary Gentlemen
Pingback posted April 16, 2009 @ 8:03 pm

[...] Ackerman: The point is that the depths of this story are still unexplored, and only a congressional [...]


hiphoplawyer
Comment posted April 16, 2009 @ 9:49 pm

you said: “The CIA officer assigned to an interrogation is no more responsible for the regimen of torture that he is asked to inflict — and told all the while is legal — than the soldier in Baghdad is responsible for the invasion of Iraq.”

I don't agree. The soldier is far, far removed from the “wrong” represented by the decision to invade Iraq. There are dozens of chain-of-command levels between that decision and the soldier's day to day actions. As it appears to the soldier, he is in a war, and the his day to day activities in that war are (presumably) within accepted operating parameters for his situation (a war). He's fighting, killing people, etc, all of which is par for the course in any war, whether or not that war is or was justified in the first place.

The CIA guy, on the other hand, is directly doing the very thing that is the “wrong” (i.e., torturing a prisoner). He knows — or should know — that what he himself is doing is morally reprehensible, quite independent of any fig-leaf of legality that has been grafted onto it by his superiors. These guys shouldn't skate.

Otherwise, great post, keep up the good work.


The Torture Memos « The Bleeding Heart Show
Pingback posted April 17, 2009 @ 9:38 am

[...] months – maybe years – to come are number of important questions these documents dare us to ask. As Spencer Ackerman [...]


Thomas M. Tamm
Comment posted April 17, 2009 @ 11:11 am

Great post Spencer. I guess if we are only to look forward, they will soon announce there is
no reason to prosecute me. I am pretty sure, however, when I prosecuted people for
murder, rape, kidnapping, it was always for past behaviour. Is it ok to prosecute something that
we think is going to happen? It seems to me, that it is incumbent on us to find out the truth
about what was perpetrated in our name. And then, we can exercise prosecutorial
discretion to decide, which, if any cases should go forward. That is what lawyers
in ever prosecutor's office in the country do everyday. Also, before you give anyone
immunity, you have to have a truthful, veribiable proffer of their complicity. You can't
buy a pig in a poke. In light of the new revelations about the government, exceeding their
expanded scope of wiretapping, and new torture techniques, it is imperative we learn
the truth of what happened. I was honored yesterday to receive the Ridenhour Prize
for truth telling. As I said, we deserve the truth, we need the truth, we can handle the
truth. In fact, bring it on.


GlobalComment » Torture - Declassified
Pingback posted April 18, 2009 @ 5:41 am

[...] Ackerman, at the Washington Independent, describes the memos as “medieval documents,” [...]


hiphoplawyer
Comment posted April 18, 2009 @ 9:51 am

Mr. Tamm, I don't know if you'll check back here to see this, but I just wanted to say that I think you are a great American. A real hero. I am saddened and embarrassed by what has been done to you. On the bright side, it looks like you are beginning to some of the accolades you so greatly deserve. Very best wishes to you.


Tsutsugamushi
Comment posted April 22, 2009 @ 9:49 am

” The CIA officer assigned to an interrogation is no more responsible for the regimen of torture that he is asked to inflict — and told all the while is legal — than the soldier in Baghdad is responsible for the invasion of Iraq.”

Not correct. Under the command responsibility doctrine you will find that when given an illegal order you are obligated to refuse. So. if Iraq is an illegal war any soldier is mandated to not participate in it. “Just following orders” is no longer sufficient to avoid criminal prosecution when you engage is criminal acts, whoever ordered it! Admittedly, those responsible for giving the order are more culpable and sentence will be accordingly. But totally unaccountable the soldier in your case is not.


Leutrell M. Osborne, Sr.
Comment posted April 22, 2009 @ 10:22 am

Any CIA Spy Manager knows the results of torture so show me the beef? Who is really being protected now that the administration is not planning to hold the interrogators responsible? Smells like there is protection for DOD resources may be since the DOD is mainly Republican controlled and managed right?
Regardless this topic on holding somebody responsible is really a side show while the genuine problems continue under the surface of this public psy game. What is really the DNI agenda?

When will the HUMINT capabilities be improved and increased? When will the funds be pulled from Covert Action intelligence operations so the funds can be used for greater results? Tell me when you news people will really get the more important stories going?


JZ
Comment posted April 22, 2009 @ 6:21 pm

Just ask anyone who thinks torture is “justified”…..”If your son (or daughter) was in the military…and
was captured by the enemy….do you think it would be right for him (or her) to be water-boarded…?
…to be deprived of sleep for days or weeks on end…..to be slapped around…and thrown head first
against walls..” .if your answer is “yes”…..then….there's nothing I can further say…..


vince
Comment posted April 23, 2009 @ 11:47 am

No apparent increase in susceptibility to severe pain has been observed either when techniques are used sequentially or simultaneously — for example, when an insult slap is simultaneously combined with water dousing or a kneeling stress position, or when wall standing is simultaneously combined with an abdominal slap and water dousing.

The insane ramblings of the psychopathic.


Amerikagulag
Comment posted April 23, 2009 @ 12:10 pm

“….The CIA officer assigned to an interrogation is no more responsible for the regimen of torture that he is asked to inflict — and told all the while is legal —….”

Not so. There is a moral question. Soldiers invading a country are given orders and relying on that information proceed with their mission – not with the intention of inflicting pain, but with the intention of righting a wrong. (in theory) Soldiers cannot simply disobey commands

The torturers, on the other hand are in FULL CONTROL of their complicity and have every right and opportunity to simply say “no”. Therein lies the difference and it's a WORLD of difference.


D Freeman
Comment posted April 24, 2009 @ 6:19 am

Torturing is nothing new men has been into it since they could get up and walk and talk at the same time its nothing to do with information its to do with power and feeling of power over another human being as I am sure many of these so called adult men get their rocks off in these sessions , as for it being illegal this is what the Government's of these country say to make their people feel safe that it will not happen to them what was crucifying Jesus was not the first man to suffer this, and did not the Catholic Church have men who did in the name of God and they still have those who belong to its club and the Japanese and Vietnam and the USA and Britian we like to pretend that we do not but were experts at it as the white south Africans and what colour was the Nazis open the gates of hell and you will suffer we can all say we were falling orders but really these so called humans enjoy their job. Cheney who shot people when ever they back chatted him did not have that soulless look in his eyes for nothing . Saddam was put to death for war crimes when are others going to follow the same fate, it seems only fair to me.


D Freeman
Comment posted April 24, 2009 @ 1:19 pm

Torturing is nothing new men has been into it since they could get up and walk and talk at the same time its nothing to do with information its to do with power and feeling of power over another human being as I am sure many of these so called adult men get their rocks off in these sessions , as for it being illegal this is what the Government's of these country say to make their people feel safe that it will not happen to them what was crucifying Jesus was not the first man to suffer this, and did not the Catholic Church have men who did in the name of God and they still have those who belong to its club and the Japanese and Vietnam and the USA and Britian we like to pretend that we do not but were experts at it as the white south Africans and what colour was the Nazis open the gates of hell and you will suffer we can all say we were falling orders but really these so called humans enjoy their job. Cheney who shot people when ever they back chatted him did not have that soulless look in his eyes for nothing . Saddam was put to death for war crimes when are others going to follow the same fate, it seems only fair to me.


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