Jack Bauer would surely have approved. The fictional tough-guy agent from hit TV series 24 was notoriously robust in his interrogation of suspects who he felt were a clear and present danger to US national security.
For Bauer, setting CIA operatives loose to bang suspects’ heads into walls up to 30 times in a row, to deprive them of sleep for periods of up to a week, to slap them repeatedly in the face and abdomen, to confine them to small dark boxes for hours at a time, and to suffocate them with water to induce the perception that they are drowning would have been all in a day’s work, albeit unnecessarily time-consuming.
Yet what emerged last week in one of the most astonishing publications of formerly classified memos by a Western peace-time government is that such interrogation techniques did not come from the realms of fiction but from a procedures manual officially endorsed by the former Bush administration.
The so-called “torture” memos, part of the interrogation policy championed by then Vice-President Dick Cheney, outlined the approved techniques that the CIA could use to extract information from terrorist suspects in a network of secret overseas prisons following the 9/11 attacks and the start of the War on Terror in 2001.
But the most striking aspect of their publication by the Obama administration is the detailed legal advice that was used to justify their use. Although the consensus now appears to be that the techniques amounted to straightforward torture, Bush-era lawyers argued that they were not, giving the green light for the CIA to apply them as they saw fit.
President Barack Obama took the decision to allow the Justice Department to release the memos despite pleas from four previous CIA directors and the present holder of the post that they should not be in the public domain. The President is believed to have wanted to be seen to be acting voluntarily rather than being forced to publish them under a Freedom of Information legislation request lodged by the American Civil Liberties Union.
But his further decision to rule out any prosecution of the CIA operatives involved in applying the techniques has brought a flood of criticism from liberal commentators who fear the President, despite his own objections to the methods, has now become complicit in their application.
David Cole, a professor at Georgetown University Law Centre, and the author of Justice At War: The Men and Ideas That Shaped America’s ‘War on Terror’, said: “The four legal memos released by the Obama administration on Thursday confirm in excruciating detail that the Bush administration employed twisted and macabre legal reasoning to authorise the unspeakable – the torture and cruel, inhuman and degrading treatment of human beings.
“Obama’s refusal to hold accountable those responsible for the wrongs so evident from the memos is unacceptable. A child would recognise these tactics as cruel and inhumane.”
He adds, however, that it is not the line CIA operatives that should face sanctions. “Rather, it is the lawyers and high-level government officials who set this scheme in motion and made it possible. These documents are irrefutable evidence that government officials, including lawyers employed in the Office of Legal Counsel, a Justice Department office meant to serve as the “constitutional conscience” of the Executive Branch, set out to manipulate the law to reach repugnant, illegal results that contravene the very ideals President Obama says must not be sacrificed.”
Published excerpts from memos in force between 2002 and 2005 illustrate the arguments used to justify interrogation techniques, making them legal under American law and circumventing United Nations codes on torture.
Take sleep deprivation, one of 10 techniques used in the interrogation of Abu Zubaydah, a suspected al-Qaeda logistics specialist. A memo reads: “Generally, a detainee undergoing this technique is shackled in a standing position with his hands in front of his body, which prevents him from falling asleep but also allows him to move around within a two to three-foot diameter.”
The legal justification runs: “It is clear that depriving someone of sleep does not involve severe physical pain… Nor could sleep deprivation constitute a procedure calculated to disrupt profoundly the senses, so long as sleep deprivation (as you have informed us is your intent) is used for limited periods, before hallucinations or other profound disruptions of the senses would occur.”
Or consider the justification for “waterboarding”, a technique that the US described as torture when used by the Japanese against American prisoners in the Second World War. The memos say: “This effort plus the cloth produces the perception of ‘suffocation and incipient panic’, ie, the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of 12 to 24 inches… The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated.”
The lawyers ruled: “Although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain… Although the waterboard constitutes a threat of imminent death, prolonged mental harm must none the less result to violate the statutory prohibition infliction of severe mental pain or suffering…
“In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture.”
The interrogation methods, authorised at the beginning of 2002 and some used as late as 2005 in the CIA’s secret prisons, were among the Bush administration’s most closely guarded secrets. The four memos give an extraordinarily detailed account of the CIA’s methods and the Justice Department’s long struggle, in the face of graphic descriptions of brutal tactics, to square them with international and domestic law.
The four legal opinions, released in a Freedom of Information Act lawsuit filed by the ACLU, were written by the Justice Department’s Office of Legal Counsel, the highest authority in interpreting the law in the executive branch.
The first of the memos, from August 2002, was signed by the head of the Office of Legal Counsel, Jay S Bybee, and gave the CIA its first detailed legal approval for waterboarding and other harsh treatment. Three others, signed by Steven G Bradbury, sought to reassure the agency in May 2005 that its methods were still legal, even when multiple methods were used in combination, and despite the prohibition in international law against “cruel, inhuman or degrading” treatment.
A more pressing concern for the CIA is that the revelations might give new momentum to a full-blown investigation into Bush administration counter-terrorism programmes and possible torture prosecutions.
Within minutes of the release of the memos, Senator Patrick J Leahy, the chairman of the Senate Judiciary Committee, said that the memos illustrated the need for his proposed independent “Commission of Inquiry”, which would offer immunity in return for candid testimony.
Obama revoked all legal opinions on interrogation on his second day in office, when he also outlawed harsh interrogations and ordered the CIA’s secret prisons to be closed. The ACLU said the memos clearly describe criminal conduct and underscore the need to appoint a special prosecutor to investigate who authorised and carried out torture.
The CIA has never revealed the location of its so-called black sites overseas, but intelligence officials, aviation records and news reports have placed them in Afghanistan, Thailand, Poland, Romania and Jordan, among other countries. Agency officials have said that fewer than 100 prisoners have been held since the programmes was created in 2002, and about 30 were subjected to what the CIA called “enhanced” interrogation techniques.
There is relief in CIA circles, however, that its staff are unlikely to be prosecuted.
As Kori Schake, a former national security adviser on defence issues to President Bush, put it: “It seems to me that President Obama hit the balance about right in rejecting the use of those techniques and releasing the information, but acknowledging that the intelligence community was working on a very difficult problem and conducting the interrogations in good faith with the legal advice they were receiving.
“Subjecting people to prosecution under those circumstances would be a dangerous politicisation of difficult choices made by those serving our country.”
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