Now This Is How You Guarantee Getting the Conclusions You Want
Assume that the senior officials in the Bush administration acted in good faith from March until August of 2002, when senior officials in Washington were debating what CIA interrogators could and should do to captured al-Qaeda member Abu Zubaydah. Assume they wrestled with the moral and practical complications of what they were considering doing to him. Assume they felt that a terrorist attack was guaranteed if they made the wrong choice. Even assuming all that, this — from the Senate Select Committee on Intelligence’s declassified narrative of the legal justifications for torture from 2001 to 2008 — is really disturbing:
On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) met with the National Security Adviser, who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah. This advice, which authorized CIA to proceed as a policy matter, was subject to a determination of legality by OLC. On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.
First, this is the exact opposite of how policy is supposed to exist. You determine first what’s legal. Then and only then do you consider a palette of options for what’s necessary, desirable, wise, etc. But here’s Condoleezza Rice telling George Tenet it’s OK “as a policy matter” to torture Abu Zubaydah before knowing from the Office of Legal Counsel what’s actually legally permissible.
Second, under those circumstances, how in the world is the OLC supposed to come to any conclusion except that it should rubber-stamp the CIA’s interrogation program? I’m not saying that Jay Bybee or John Yoo derived a rationale for torture against their will. They’ve given no public indication of that. Yoo, for example, has only ever defended what he wrote. What I mean to say instead that is that alternative viewpoints had, by this point, already been discarded, and so there was only ever the question of how to make the CIA interrogation proposals legal — despite the fact that the opening sentence of the August 1, 2002 OLC memo on interrogation techniques says the office is considering “whether certain proposed conduct would violate the prohibition against torture.” What kind of process is this?