Too close to the edge on torture

In summer 2008 top officials of the DOJ and White House defended interrogation policies against a torrent of congressional questions about the use of torture

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The White House sanctioned the use of harsh interrogation techniques on detainees, such as simulated drowning, based on legal reasoning it later rescinded; even many within the administration felt the techniques amounted to torture. At the outset of President George W. Bush’s “global war on terror,” lawyers in the Department of Justice (DOJ)’s Office of Legal Counsel (OLC) produced legal guidance that enabled the Central Intelligence Agency (CIA) to use the techniques on terrorism suspects. On August 1, 2002, the OLC provided a now-infamous “torture memo” to Alberto Gonzales, who was then counsel to the president. “We conclude that for an act to constitute torture . . . it must inflict pain that is difficult to endure,” reads the memo, which was written at the request of the CIA. Physical pain must be equal to the pain of “organ failure, impairment of bodily function, or even death.” The OLC later extended similar advice to the Department of Defense. According to reports by news media and human rights organizations, U.S. interrogators used techniques that included: depriving detainees of clothing, food, light, warmth, and sleep; slapping them on the face and torso; and waterboarding, a technique that simulates drowning.

In 2003, a new OLC chief, Jack Goldsmith, concluded that these memos had defined torture too narrowly and prepared to fight for their reversal, he wrote in his book, The Terror Presidency. In June 2004, after the OLC’s torture memo leaked to The Wall Street Journal, Goldsmith withdrew the memo and offered his resignation, calculating that either the White House would have to respect his decision or risk his resignation dominating news headlines. His decision stood, but Attorney General John Ashcroft resisted Congressional efforts to obtain other controversial memos. The legal reasoning that replaced the memo backpedaled on admissible practices and noted that in the past U.S. courts had found that “a course of conduct that included, among other things, severe beatings . . .repeated threats of death and electric shock [and] sleep deprivation . . .constituted torture.” The stated goal of these techniques, according to officials, was to extract information from terrorism suspects that would help prevent future attacks. And, while officials have argued that information obtained using these techniques has indeed helped prevent some attacks, considerable debate persists about the quality of intelligence obtained through torture. Because of the questionable nature of this evidence, the United States is having a difficult time prosecuting some detainees subjected to such treatment. Critics have also argued that use of the controversial techniques badly damaged America’s standing throughout the world.

Follow-up:
The Department of Justice’s Office of Professional Responsibility is investigating the Bush administration’s embrace of waterboarding. In summer 2008 the House Judiciary Committee and the Senate Armed Services Committee held hearings probing the issue, at which top officials of the DOJ and the White House defended the policies against a torrent of harsh questioning. Although the White House press office did not respond to a request for comment, in July 2007 the president signed an executive order requiring “any CIA interrogation program” to comply with “all relevant federal statues” and put “explicit limitations on interrogation techniques.”

A statement from the White House said, “The president has insisted on clear legal standards so that CIA officers involved in this essential work are not placed in jeopardy for doing their job — and keeping America safe from attacks.” On December 11, 2008, the Senate Armed Services committee reported the findings of its two-year, bipartisan inquiry; it found that the controversial interrogation techniques were the result of administration policies, not bad decisions by individual soldiers. “The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own,” the report says. On January 14, 2009, a top Bush administration official, Susan J. Crawford, told The Washington Post that the U.S. military tortured Mohammed al-Qahtani, and that his treatment had kept her from referring his case for prosecution. Qahtani alledgedly intended to participate in the September 11 attack on the World Trade Center.

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