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Torture in Daylight

April 02, 2008 9:51 AM

Now that we've finally gotten the long-renounced and repudiated 2003 torture memo authorizing harsh interrogation techniques by the military, there are obvious questions about what took the White House so long to release it--and why.

In fact, there were some people at DOJ who argued for the release of this memo back in 2004---when the Washington Post broke the story about the CIA memo. Their point was that the legal analysis in this memo was essentially the same as the 2002 memo, which authorized harsh interrogation techniques by the CIA. In fact, reading it last night, I was struck by how much of it seems to have been cut-and-pasted from the 2002 CIA memo.

This memo is more expansive than the CIA memo, to be sure. It exempts military interrogators from more laws, treaties, etc than CIA--since some of those laws arguably didn't cover CIA. It is a staggering assertion of executive power. But it outlines similar defenses available to military interrogators (necessity and self defense), as well as the purported presidential override power.

But those sweeping and faulty conclusions--later described by senior DOJ official Jack Goldsmith, who disavowed them, as a "sheer exercise of power" as opposed to "reasoned analysis"---have been known and reported.

So what's new here is that we have the actual memo--we have something to hold in our hands and read--which is a sobering (putting it mildly) reminder of how aggressively the WH sought to assert its power and exempt itself from law. But the reasoning, the impact within the Department of Defense (still debated) and the result (rescinded within a year) have been known a long time.

Which makes the point: the dissidents in DOJ in 2004 were right. Had the WH released it then, this memo would not be commanding the front page of the WP and NYT today, but would have been folded into the stories that people were leaking three and a half years ago.

That also raises a question: What's next? Will we ever see the more detailed Yoo memo from 2002--still classified--in which he applied his legal reasoning to specific interrogation techniques? That memo, too, has been replaced. It's no longer relied upon--and some of the techniques he reportedly authorized (waterboarding) no longer are used. It seems it's long past time for that old legal analysis to also see the light of day.

And a final point: The attention and criticism we're hearing show how the narrative has changed since 2004.

The images at Abu Ghraib have settled into the public consciousness. We're years removed from 9/11. The Supreme Court has slapped down some of President Bush's broad assertions of power at GTMO and elsewhere in the war on terror. The military has prosecuted people for abuses. John Yoo, the author of these memos, is under investigation by DOJ's Office of Professional Responsibility for giving shoddy legal advice and could well be disbarred. And Congress is controlled by Democrats, with a weakened and unpopular President down Pennsylvania Avenue.

April 2, 2008 | Permalink | User Comments (3)

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Posted by: cba | Apr 2, 2008 10:35:00 AM

Posted by: Tom Roth | Apr 2, 2008 10:26:03 PM

Posted by: ROBERT M. JOHNSTON | Apr 20, 2008 4:10:14 PM

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