So What’s In That 2007 Interrogation Memo?
On Tuesday, we broke the story of an undisclosed Office of Legal Counsel memo from 2007 about what interrogation techniques were and weren’t legal for the CIA to use on detainees. The Senate Select Committee on Intelligence narrative timeline of the Bush administration’s legal and policy approval for abusive interrogations confirmed our story publicly the very next day. We’re still waiting on the fulfillment of a Freedom of Information Act request from the Justice Department to acquire the memo. But the timeline released by the Senate intelligence committee gives some basic outlines of what it contains. And why not close the week out by going through them?
So recall that the CIA asked for the memo because in June 2007 President Bush issued an executive order, known as 13440, that sought to update the basis for the CIA’s interrogation program to accommodate the Supreme Court decision in Hamdan v. Rumsfeld and subsequent acts of Congress that specified, as the Senate intelligence committee put it, “particular violations of Common Article 3 [of the Geneva Conventions] subject to criminal prosecution under the War Crimes Act.” CIA wanted to be super-duper sure that it had full legal approval for, uh, things that might be war crimes unless they were sprinkled in the OLC’s magic legal pixie dust. So its lawyers went to OLC and got a memo produced. What did it say?
The July 2007 opinion includes extensive legal analysis of the war crimes added by the MCA [2006 Military Commissions Act], U.S. constitutional law, the treaty obligations of the United States, and the legal decisions of foreign and international tribunals. The July 2007 opinion does not include analysis of the anti-torture statute but rather incorporates by reference the analysis of the May 2005 opinions that certain proposed techniques do not violate the anti-torture statute, either individually or combined.
In considering “traditional executive behavior and contemporary practices” under the substantive due process standard embodied in the Detainee Treatment Act, OLC considered similar sources to those considered in the May 2005 opinion on Article 16. In addition, OLC examined the legislative history of the MCA, which the President had sought, in part, to ensure that the CIA program could go forward following Hamdan, consistent with Common Article 3 and the War Crimes Act. OLC observed that, in considering the MCA, Congress was confronted with the question of whether the CIA should operate an interrogation program for high value detainees that employed techniques exceeding those used by the U.S. military but that remained lawful under the anti-torture statute and the War Crimes Act. OLC concluded that while the passage of the MCA was not conclusive on the constitutional question as to whether the program “shocked the conscience,” the legislation did provide a “relevant measure of contemporary standards” concerning the CIA program and suggested that Congress had endorsed the view that the CIA’s interrogation program was consistent with contemporary practice.
To make a long story short, since the Military Commissions Act showed that Congress implicitly said there should be a CIA interrogation program — hey, its “conscience” wasn’t “shocked” – it was perfectly acceptable for OLC to bless the contours of a CIA interrogation program that was forged before a host of Supreme Court decisions and acts of Congress introduced additional-but-not-so-specific protections of basic detainee rights. Unless I’m misunderstanding something, the Senate narrative essentially says that the OLC considers nothing in the legislative and judicial record in the two years since it issued its last opinions on the CIA program to have warranted any material changes to the legal basis for it.
And, remember, OLC has a point: the 2006 Military Commissions Act, like the 2005 Detainee Treatment Act before it, carved out exemptions for the CIA. Here’s CIA Director Michael Hayden’s statement the day Bush signed the 2006 act:
It gives the legal clarity and legislative support necessary to continue a program that has been one of our country’s most effective tools in the fight against terrorism. The ensures that we can detain and interrogate key terrorist figures in the future, if and when the need arises. We can be confident that our program remains – as it always has been – fully compliant with U.S. law, the Constitution, and our international treaty obligations.
Thanks, John “this legislation ensures that we respect our obligations under Geneva” McCain!