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 Jack Goldsmith, then-head of OLC, in 2004 withdraws the original basis for the CIA’s torture program, Rizzo comes right back to 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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