by Andrew

A reader writes:

I read the document you are referring to last night before going to bed (not the best idea).  One aspect of it that I have not seen emphasized is the fact that the CIA General Counsel's Office was transmitting it to OLC with a request to render a favorable legal opinion about a torture regime that was already being used.  This document is from December 2004.  2004!  Consider these lines from the cover letter:
"Please find enclosed a paper describing a generic interrogation process that sets forth how the Agency would expect to use approved interrogation measures both in combination and in sequence with other techniques. Our hope is that this letter will permit your office to render advice that an interrogation following the enclosed description would not violate the provision of 18 U.S.C. Section 2340A [the federal law that defines and criminalizes torture]." [My emphasis].
Then this at the end, after the torture regimen applied to high-value detainees is laid out in excruciating detail:
"However, the exemplar above is a fair representation of how these techniques are actually employed."
This is fairly conclusive evidence that the Bush team which authorized this torture knew it was illegal when they ordered it, but they didn't care.  Only when the CIA interrogators got scared about the prospect of getting charged with war crimes either in the U.S. or at the World Court did they reach out to OLC to get ex post facto legal cover.

I am not sure which is more distressing - the moral corrosion of the American polity this episode so clearly illustrates, or the abandonment of the rule of law so casually carried out by our elected leaders.  I suspect that ultimately, the two are inseparable.

And this is what makes Holder's decision to withhold the OPR report on the legal professionalism of the torture memos so bizarre. They are the final link of evidence that proves what we already know - that the deicsion to torture was made long before any "legal" defense of it was drafted. The legal memos were not good faith memos, but retroactive cover for criminal acts already being committed. This was a conspiracy against the rule of law, directed from the very top of Washington, empowering the president to torture anyone at will.

What we now know is that immediately after 9/11, Dick Cheney decided that torture was going to be his principal weapon in waging the intelligence war on al Qaeda.

He knew this was illegal but believed he was saving the country and also believed that the constitution empowers the president to assume total, dictatorial powers in war-time. So he sabotaged the usual institutional checks, told the president everything was legal and "not torture", took the US out of the Geneva Conventions, hired freelance goons to devise torture techniques, and began torturing the prisoners as they came in. He realized all along that this was illegal by the lights of every sane legal professional, and so then directed pliable fanatics, like John Yoo, to create legal memos to grant retroactive immunity - a golden shield - for all those involved in the torture. He then used the crudest politicking to brow-beat all defenses of American honor, decency and real interrogation as abetters of the enemy.

We need to see the blacked out portions of the 2004 report, including how four prisoners were tortured to death. There is no conceivable reason not to see this for national security reasons. These were homicides. It would be extremely illuminating to know precisely what brought these individuals past torture into murder. And we need to see the OPR report on the torture memos to close the phony bad faith legal circle and see this as the putsch against the constitution that it truly was. Only then can we look at the question of accountability. And I suspect the revelation of the worst abuses is yet to come.

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