Complete Dust-Up: Day 1 | Day 2 | Day 3
How much did Bush know, and when did he know it?Point: David Kaye
The Obama administration's release of four previously classified Justice Department memos, one from 2002 and three from 2005, demonstrate that the use of interrogation methods involving torture and other forms of cruel, inhuman and degrading treatment was cleared by a small set of politically appointed lawyers. We knew this story already. What was less clear was how Justice Department lawyers at the White House's Office of Legal Counsel (OLC) were involved in the minutiae of CIA interrogation practices. These lawyers approved such techniques as waterboarding, spinning this long-forbidden practice as "a controlled acute episode."
In a bizarre passage from the 2002 memo, OLC lawyers permit the placement of an insect in a cramped box confining an entomophobic detainee. There's more such information along these lines in the memos -- not exactly what you would expect "thinking like a lawyer" to involve.
I have my own reasons to own up to a bit of schadenfreude at the release of these memos. In the year following 9/11, I handled Geneva Convention issues for the State Department; I was a principal drafter of memos arguing that the international law of war applied in Afghanistan and thus to the detainees held at Guantanamo Bay. The same OLC, White House and Pentagon lawyers we sparred with early in 2002 went on to write, solicit or approve the torture memos later that year. They excluded experienced lawyers from the State Department and elsewhere from the process of interpreting U.S. obligations under Geneva and the United Nations Convention Against Torture, among other treaties.
We saw the coming train wreck and advised the administration of the harsh political, legal and security consequences of failing to abide by U.S. and international law. Early in January 2002, my boss at the State Department, William H. Taft IV, advised the OLC's John Yoo that "only the utmost confidence in our legal arguments could, it seems to me, justify deviating from the United States' unbroken record of compliance with the Geneva Convention in our conduct of military operations over the past 50 years." Taft was right, Yoo was wrong, and now we see the consequences.
That said, as much as the OLC memos demonstrate professional misconduct, bad lawyering and possible culpability in the torture regime that followed, I fear that they obscure from public view this basic reality: The most senior policymakers in the Bush administration decided to employ torture and cruel, inhuman and degrading treatment against terrorism detainees.
We know this from the dozens of memos, reports and journalistic accounts in the five years since the Abu Ghraib scandal broke. The bipartisan report on military interrogation from the Senate Armed Services Committee (pdf) and the timeline on the CIA's program from the Senate Intelligence Committee (pdf), both released this month, make senior-level responsibility crystal clear.
Thus, as clarifying as the OLC memos are, there's much we still don't know, including the point at which President Bush and his staff explicitly ordered or approved the interrogation program. And despite recent suggestions from Dick Cheney that the program "worked," we don't know what benchmarks, if any, the administration set for itself to judge the effectiveness of torture and cruel treatment.
The aforementioned Senate report concluded that the Bush interrogation program of torture and cruel treatment "damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority." If this is true, we must uncover the entirety of the interrogation programs to ensure that they do no recur.
The Obama administration did the right thing in releasing the OLC memos, for even if those responsible are not held to account (a subject we'll take up later in the week), subjecting the Bush policies to the full light of day is crucial to repairing the damage they've already done.
David Kaye, a former State Department lawyer, is executive director of the International Human Rights Program at the UCLA School of Law.
This is a policy debate, not a legal oneCounterpoint: James Jay Carafano
David, you certainly have your facts right. The Bush interrogation polices received clearance at the highest levels, a fact that the memos released by the Justice Department make clear. They also lay out the reasoning for the policy in mind-numbing detail. The hand of the administration's lawyers can clearly be seen on every page.
My guess is that Bush administration officials are not terribly surprised that the memos have seen the light of day. Doubtless they sensed that history would judge them some day, and that lawyers, judges and high-profile commissions, perhaps, would be grading them as well. They understood that, even without the release of the documents, they were in for withering criticism. They would be second-guessed over whether the policies were necessary. They would be challenged over how the interrogations would affect America's reputation as a nation committed to the rule of law.
In addition, we now know that key congressional leaders received detailed briefings on administration policies as they were being carried out. We also know that we don't have the entire story yet. Dick Cheney says there are more memos that should be released -- ones that spell out in even greater detail the full scope and context of the program, including its effectiveness.
These were not casual judgments, and I'm sure, David, that you would agree with me that they ought to have been made at the highest level. After all, that's the way it's supposed to work. We expect bureaucrats to rubber-stamp forms and pass the buck; we elect political officials to make the hard choices. Nobody in the administration who had responsibility for these decisions passed the buck. So in the end, the one thing the memos demonstrate conclusively is that Bush administration officials did what we elected them to do.
Beyond reflecting on the efforts of leaders to make hard and difficult choices in the wake of the most devastating terrorist attack in U.S. history -- at time when no one knew when or where the next shoe would drop (and whether it would be a car bomb, a dirty bomb, a nuclear bomb or a bomb at all) -- that is where consensus on what the memos represent ends.
You think they illustrate wrong-headed, reckless and possibly criminal behavior. Others read the same documents and come to very different conclusions. In the Wall Street Journal, lawyers David Rivkin and Lee Casey wrote recently, "The four memos on CIA interrogation released by the White House last week reveal a cautious and conservative Justice Department advising a CIA that cared deeply about staying within the law. Far from 'green lighting' torture -- or cruel, inhuman or degrading treatment of detainees -- the memos detail the actual techniques used and the many measures taken to ensure that interrogations did not cause severe pain or degradation."
Rivkin and Casey offer more than just their opinion to back up these conclusions. There are many details in the memos on what was required to ensure continuous monitoring and to prevent interrogations from straying over the gray area from, yes, harsh measures to cruel torture. Indeed, the memos suggest the opposite of what the political drumbeat for vengeance suggests: There are no apparent grounds for criminal prosecution in the formulation of Bush administration policies.
This debate, I fear, will never be settled in a court of law. It won't be snuffed out by a commission report stamped "case closed." We can never be "shown enough" about the Bush policies to resolve whether his administration did exactly the right thing. The debate over the memos is about policy, not law. There is no end to policy debates in Washington. There are only permanent battles.
James Jay Carafano is assistant director of the Kathryn and Shelby Cullom Davis Institute for International Studies and a senior research fellow at the Douglas and Sarah Allison Center for Foreign Policy Studies at the Heritage Foundation.