Senate Intelligence Committee Publicly Confirms Existence of 2007 OLC Interrogation Memo
The Senate Select Committee on Intelligence, after consultation with Attorney General Eric Holder, just issued a declassified narrative of how the Justice Department’s Office of Legal Counsel came to approve the CIA’s enhanced interrogation program. You can read the report at the committee’s Website, but I want to focus on one brief aspect of it:
In July 2007, the President issued Executive Order 13440, which interpreted the additional obligations of the United States imposed by Common Article 3 of the Geneva Conventions. In conjunction with release of that Executive Order, OLC issued a legal opinion analyzing the legality of the interrogation techniques currently authorized for use in the CIA program under Common Article 3 of the Geneva Conventions, the Detainee Treatment Act, and the War Crimes Act.
The Washington Independent broke the story of the existence of that memo yesterday. This is the first clear, declarative public acknowledgement by any government authority that the 2007 OLC memo exists. Here’s an interesting omission that the Senate intelligence panel found within it:
Because waterboarding was not among the authorized list of techniques, the 2007 OLC opinion did not address the legality of waterboarding. OLC therefore has not considered the legality of waterboarding under either of the two provisions that have been applied to the CIA’s treatment of detainees since the passage of the Detainee Treatment Act in December of 2005: Common Article 3 of the Geneva Conventions and the War Crimes Act, as amended by the MCA.
The panel ends its narrative by reiterating that the Obama administration has said “the United States Government may not rely on interpretations of the law governing interrogations issued by the Department of Justice between September 11, 2001, and January 20, 2009.”
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