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Government Puts Off Producing Key OLC Memos on Harsh Interrogation Techniques

The Justice Department on Thursday again delayed disclosure of three critical legal memos written by Steven Bradbury, then a lawyer in the Justice Department’s Office of Legal Counsel (OLC), that reportedly authorized the the CIA to torture prisoners. This is at least the second time that the government has postponed responding to a federal judge — who originally ordered the government to either produce the memos or justify withholding them by last October — in an ongoing Freedom of Information Act case brought by the American Civil Liberties Union. The disclosure is reportedly a subject of heated debate within the Justice Department.

In his latest ruling on the matter, U.S. District Court Judge Alvin Hellerstein in New York had given the Justice Department an extension until Thursday to disclose the memos or explain its refusal. The ACLU yesterday said that it agreed to the government’s request to extend the deadline in exchange for commitments by the government that high-level officials will consider releasing not only the Bradbury memos written in May 2005, but also an August 2002 memo written by Jay S. Bybee, then head of OLC. The Bush administration had refused to produce the Bybee memo.

“Collectively, these memos supplied the framework for an interrogation program that permitted the most barbaric forms of abuse, violated domestic and international law, alienated America’s allies and yielded information that was both unreliable and unusable in court,” said Jameel Jaffer, Director of the ACLU National Security Project, in a statement. “While we are disappointed that the Bradbury memos were not released today, we are optimistic that the extension will result in the release of information that would not otherwise have been available to the public.”

The release of these memos has been highly anticipated, in part because if they provide legal justifications for torture and other plainly illegal conduct, they could be used in future prosecutions of former Bush administration officials to claim that the Justice Department’s Office of Legal Counsel was used by senior Bush officials to provide legal cover for unlawful government conduct.

A “commission of inquiry,” proposed by Sen. Patrick Leahy (D-Vt.) and seen by many as a possible alternative to prosecution, is now considered unlikely to gain the necessary Congressional support.

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