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OLC Torture Memos Were Based on Faulty Assumptions

To follow up on my post last week about how the Bush administration Office of Legal Counsel lawyers who drafted the recently released torture memos could have concluded that the bizarre techniques we’ve all read about do not “shock the conscience,” I thought I’d look up the Supreme Court case that the May 30, 2005 Bradbury memo cites in reaching that conclusion.

In County of Sacramento v. Lewis, the Supreme Court said that what “shocks the conscience” and therefore violates the right to substantive due process is conduct that lies beyond the “decencies of civilized conduct”; is “so ‘brutal’ and ‘offensive’ that it does not comport with traditional ideas of fair play and decency”; or “interferes with rights ‘implicit in the concept of ordered liberty’ ”.

It’s hard to imagine how slamming a prisoner’s head repeatedly against a wall, drowning him on a waterboard, depriving him of sleep (and adequate food) for more than five days straight or cramming him into a “confinement box” with insects he believed were deadly could possibly comport with anybody’s notion of “civilized conduct,” “fair play and decency” or “ordered liberty.”

So how did former OLC head Steven Bradbury and his team of lawyers who wrote the memos reach that conclusion?

They assumed that the government interest at stake – preventing another terrorist attack – justified the conduct, even if, on its face, that conduct looked clearly uncivilized, indecent, and, well, conscience-shocking. And, they assumed that torture and abusive interrogation tactics would be effective at preventing another terror attack.

In fact, according to the May 30, 2005 memo, the lawyers were told just that by John Rizzo, senior deputy General Counsel for the CIA, to whom the memo was addressed:

Significantly, you have informed us that the CIA believes that this program is largely responsible for preventing a subsequent attack within the United States.

But where did that belief come from, and was it reasonable?

Expert studies have shown repeatedly that there is no evidence to support the claim that torture and other abuse of detainees will actually lead interrogators to obtain reliable and valuable information. In fact, as Human Rights First has pointed out, the U.S. Army’s own field manual on interrogation, published in September 2006, states that torture “is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the [human intelligence] collector wants to hear.” As veteran FBI interrogator Joe Navarro has said repeatedly: “the only thing torture guarantees you is pain.”

The Bush administration has never proven anything to the contrary. Just two weeks ago, former Bush Administration officials who monitored the interrogation of high-level terror suspect Abu Zubaydah told reporters for The Washington Post that “not a single significant plot was foiled” as a result.

The May 30 Bradbury memo even acknowledges the tenuousness of its own assumption. In footnote 28, for example, it says:

This is not to say that the interrogation program has worked perfectly. According to the IG report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information….On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques.

In short, the OLC lawyers reached their legal conclusions that these torture techniques did not violate the law by making assumptions that appears to have been wholly unsubstantiated – that the techniques would be effective.

Because the assumption is invalid, the legal conclusion is unsupported. And it provides strong evidence that the legal memos were not written “in good faith”, as the law requires, and the senior officials who relied upon them likely knew that. If that’s the case, then the memos don’t provide the absolute defense – or “golden shield” – that Bush officials have claimed.

Clearly, further investigation is warranted.

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