Philippe Sands

The Torture Memos: Rationalizing the Unthinkable

on 12 November 2009


The shocking secret memos used to justify CIA torture tactics are revealed in an extraordinary new book, writes Philippe Sands QC.

The world is watching the United States’ efforts to come to terms with the abuse unleashed in the aftermath of 9/11. On the heels of a potentially far-reaching Spanish criminal investigation, in April 2009 the Barack Obama administration declassified more legal memos. this important volume brings together the newly released documents, together with some released in the summer of 2004, in the aftermath of the publication of the Abu Ghraib photographs.Whether these new documents allow the country to “move forward,” as president Obama intends, is unclear. The documents setout in meticulous detail the full extent of the cruelty: who, how, and what has been starkly revealed, from the legal deliberations to the number of times waterboarding was used. As David Cole notes here, these documents “are the ‘smoking guns’ in the torture controversy.” That controversy has crossed the Atlantic, as reports circulate about the involvement of British intelligence officers – duly authorized by the government – to contribute to the interview of detainees who had been (or were to be) tortured in circumstances in which the legal memos set out in this book may have played a role.

When President Obama took office, the evidence of torture was strong. Susan Crawford, appointed by President George W. Bush to head the Guantanamo military commission process, confirmed that the use of stress positions, sleep deprivation, dogs, and forced grooming on Mohammed Al-Qahtani, a Guantánamo detainee, was torture. The Obama administration agrees that waterboarding is torture. The issue was not how to characterize these international crimes, but what to do about them. News of a Spanish investigation by Judge Baltasar Garzon appears to have catalyzed debate on what to do about the Department of Justice (DOJ) and other senior lawyers and officials known as the Bush six (Alberto Gonzales, David Addington, Jim Haynes, John Yoo, Jay Bybee, and Doug Feith), as well as others closely associated with the embrace of cruelty. Particular attention may focus on those present in the meeting at CIA offices on July 13, 2002, when it seems that the decision was taken to approve an interrogation plan that included waterboarding.1

President Obama has assured CIA officers that “those who carried out their duties relying in good faith upon legal advice from the Department of Justice” would not be prosecuted. Using careful words, however, he did not exclude all prosecutions. “With respect to those who formulated those legal decisions,” he added, “that is going to be more of a decision for the attorney general . . . and I don’t want to prejudge that.” Further investigation is inevitable.And it is required, by the 1984 Convention against torture.

Five years have passed since the release of a one-page memo written by Jim Haynes, Donald Rumsfeld’s lawyer at the U.S. Department of Defense, in November 2002. In plain violation of international law, the Rumsfeld memo provided blanket authorization for the use of stress positions, sleep deprivation, dogs, and nudity. It left open the use of waterboarding. This memo secretly relied on the august 1, 2002, DOJ memos and caused the torture of Mohammed al-Qahtani, at guantánamo. The techniques later migrated to Afghanistan, Iraq, and Abu Ghraib.

It is difficult to understand how the senior lawyers involved— trained at Harvard and other fine law schools—could have authorized torture. I spent eighteen months trekking around the U.S. to write Torture Team, meeting many of the officials involved. For the most part, these were ordinary, decent people. Some spoke openly and, I thought, honestly. Others didn’t; the higher up the political chain, the greater the hubris.

Early on, the idea of criminal investigations against the senior lawyers and officials seemed almost preposterous. Yet as the ideas got off the ground, they developed a life of their own. a seed was sown and, in the background, a seething, broad discontent. In the summer of 2008, fifty-four members of the U.S.. House of Representatives called for the appointment of a special prosecutor. Hearings before the U.S. Congress produced thousands of pages of new documents; the story firmed up; the central, dastardly role of the lawyers became ever clearer as a common plan to get around the laws came into sight. Laws didn’t apply, or they created no rights for detainees. Established definitions of torture were ditched. Objections from lawyers with knowledge—in the military or state Department—were cast aside.

As security and national interest trumped all else, the circle of complicity and weakness grew in size. Some I spoke with told me categorically that they had no involvement in early decisions, even if their names appeared in publicly available memos. Others dissembled, misled, and lied.
Some claims just collapsed. Before the house Judiciary Committee, a republican congressman reported information that waterboarding was used on only three men for
a grand total of three minutes. What’s all the fuss about; the congressman seemed to be saying. Then president Obama released these new memos and we learned that two men were waterboarded a total of 266 times in a limited period of time.

The torture has deeply damaged the reputation of the U.S., a country that has done more than any other to promote the idea of the rule of international law. Such harm cannot be repaired merely by putting out the documents. Accountability is needed. An investigation is inevitable, to get to the full facts, but what sort? In theory, a criminal investigation and an independent or congressional inquiry are not mutually exclusive. In reality, it is difficult for them to go hand in hand. Criminal proceedings will halt the flow of information, as those who fear prosecution clam up. Yet serious crimes have been committed, and as a nation of laws, the U.S. is bound to investigate criminal wrongdoing. This is a difficult balance to strike, as other countries, like South Africa and Chile, have found. The way forward may be to begin with the fullest possible investigation by a blue-chip independent commission, as David Cole suggests, with the power to compel the production of documents and witness testimony. This will only be a temporary reprieve of the inevitable criminal inquiry, however, whether in the U.S, Spain, or elsewhere.

Yet it is testament to America’s remarkable powers of reinvention that so spirited a debate could take place so soon after the “dark and painful chapter.” eventually the system worked, sort of, as ever more documents emerged. The body politic and the media finally got their act together, sort of. The U.S. Attorney general appointed a special prosecutor to investigate the allegations and the role of the legal memos, sort of. The Supreme Court gave decisive rulings, sort of.
And it’s hard to imagine many other countries allowing so much material to become available so quickly. The difference of approach in Britain, where the culture of secrecy remains dominant, is stark, to say the least. In the meantime, and for the foreseeable future, the eyes of the world are on the U.S. the Bush six and their cohorts remain in a deep, legal black hole of their own making. As this book spreads the facts, that hole can only get deeper.

Philippe Sands QC, is a leading international lawyer and law professor at University College London, and the author of Torture Team

This article first appeared as the foreword in the Torture Memos: Rationalizing the Unthinkable

Endnotes:

1) See memo drafted by Senator John D. Rockefeller, chairman of the Senate Committee on Intelligence, April 19, 2009, reprinted in the volume at page 275.

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