Andy Worthington, author of The Guantánamo Files, analyzes ten particularly disturbing facts to emerge from the four memos, purporting to justify the use of torture by the CIA, which were issued by the Justice Department’s Office of Legal Counsel (OLC) in August 2002 and May 2005, and released by the Obama administration last week.
8. The important role of Jack Goldsmith in resisting the culture of torture
Now that these memos are out in the open, it is, I believe, important to look back at the role played by Jack Goldsmith, who took over from Bybee as the head of the OLC in October 2003. A supposedly “safe pair of hands,” who, with Yoo, was regarded as “a leading proponent of the view that international standards of human rights should not apply in cases before U.S. courts,” Goldsmith in fact turned out to be a nightmare for the administration, as he withdrew four pieces of legal advice — including the “torture memo” and a March 2003 memo approving the more general use of “enhanced interrogation techniques” — because he regarded them as “tendentious, overly broad and legally flawed.”
As Goldsmith explained in September 2007 to Jeffrey Rosen of the New York Times, he concluded that the “torture memo” contained advice that “defined torture far too narrowly,” and also took exception to the memo’s claim that “any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the commander in chief authority in the president,” explaining that he believed that “this extreme conclusion” would “call into question the constitutionality of federal laws that limit interrogation, like the War Crimes Act of 1996, which prohibits grave breaches of the Geneva Conventions, and the Uniform Code of Military Justice, which prohibits cruelty and maltreatment.” He added that he “found the tone of both opinions ‘tendentious’ rather than cautious and feared that they might be interpreted as an attempt to immunize government officials for genuinely bad acts.”
When it came to withdrawing the “torture memo,” Goldsmith was acutely aware that it would anger the administration, because it “provided the legal foundation for the CIA’s interrogation program,” and, as Rosen described it,
He made a strategic decision: on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story. ”If the story had come out that the U.S. government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith told me. ”The timing was designed to ensure that the decision stuck.
Goldsmith made it clear that he did not think that those involved in creating the torture memos were criminally culpable. In his book The Terror Presidency, published shortly after the Times interview, he explained that “the poor quality of a handful of very important opinions” written by Yoo, who was a close friend, was “probably attributable to some combination of the fear that pervaded the executive branch, pressure from the White House and Yoo’s unusually expansive and self-confident conception of presidential power.” He also went out of his way to defend White House counsel (and later attorney general) Alberto Gonzales and even David Addington, Dick Cheney’s legal counsel (and later his chief of staff), the two figures outside the OLC who were most closely associated with the torture policy, explaining, “They thought they were doing the right thing.” This was in spite of the fact that, as he also stated, “My conflicts” — and they were considerable conflicts, by his own account — “were all with Addington, who was a proxy for the vice president.”
It is, however, impossible to square Goldsmith’s opinions of these men with the significance of his actions. As Rosen stated, “In the past, the Office of Legal Counsel had occasionally changed its legal positions between presidential administrations to reflect different legal philosophies, but Goldsmith could find no precedent for the office withdrawing an opinion drafted earlier by the same administration — especially on a matter of such importance.”
With this in mind, what Goldsmith’s actions actually revealed was a desperate — and principled — need to withdraw opinions that were not just misguided, but fundamentally unlawful, and an equally desperate desire to shield Yoo, Gonzales, Addington — and, by extension, Dick Cheney — from the grave implications of his actions.
9) The importance of releasing the Justice Department’s OLC report
From the above, I believe it is clear that Jack Goldsmith’s attempts to prevent future war crimes while protecting those responsible for war crimes already committed was, and remains an untenable position, and this has been reinforced over the last few months, in reports about the results of a four-year investigation by the Justice Department’s Office of Professional Responsibility (OPR), which was charged with looking at whether the legal advice in the crucial interrogation memos “was consistent with the professional standards that apply to Department of Justice attorneys.”
According to Newsweek’s Michael Isikoff, who broke the story, a draft of the report, submitted in the final weeks of the Bush administration, caused anxiety among former Bush administration officials, because “OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted.” A former Bush lawyer, speaking anonymously, added that he “was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.”
I maintain, as I last stressed a month ago, that the release of the OPR report is of critical importance (especially in light of recent reports that it has been rewritten, or is being rewritten, to reach a less stark conclusion of wrongdoing), as it seems clear that it is the key to securing concrete proof of the involvement of Dick Cheney, David Addington and Alberto Gonzales in the creation of the torture memos.
As for Bybee, who became a 9th Circuit judge after leaving the OLC, calls for his impeachment are completely justified, and both John Yoo and Steven Bradbury should also face prosecution, as all three men have demonstrated that they were prepared, at the request of their masters, to provide whatever legal contortions they thought they could get away with in an attempt to justify the unjustifiable: to pretend that torture was not torture, and to endorse its use, in defiance of U.S. law.
10) Barack Obama must prosecute the torturers
And finally, although the Obama administration is to be congratulated for making the memos available, Barack Obama is, at present, in the same untenable position that Jack Goldsmith found himself in; that is to say, apparently committing himself to preventing future war crimes while protecting those responsible for war crimes already committed. It may indeed be appropriate for the administration to pledge, as Barack Obama did last week, that “those who carried out their duties relying in good faith upon legal advice from the Department of Justice … will not be subject to prosecution,” but this is only acceptable if those responsible for implementing the policies obeyed by those who were only following orders are themselves held responsible.
Laws were broken and men were tortured not by some act of God, but because certain individuals decided that they were above the law, and that the absolute prohibition on the use of torture was an inconvenience that could be bypassed through the use of creative legal advice. Unlike the Bush administration’s relentless semantic maneuvering, the words “absolute prohibition” — and the torture convention’s insistence that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture” — are not negotiable.
Just as those who commit terrorist atrocities are criminals, and not warriors in a “Global war on terror,” those who approve the use of torture — whatever its supposed rationale — are also criminals. Unlike Steven Bradbury, and John Yoo and Jay Bybee before him, law-abiding citizens will recognize that the newly released memos provide a glimpse into a horrendous world that “shocks the conscience,” in which torture seems to have become an end in itself, and in which 94 men — most of whom have never even been identified — were judged to be guilty without a trial, were tortured and have since disappeared, their whereabouts unknown.