The debate over the CIA interrogation program pits critics who insist illegal torture took place against defenders who say the treatment of prisoners was legal. These defenders cite guidance that the spy agency got from the Bush Administration. Former CIA Director Michael Hayden phrased it this way: "It needs be said that on multiple occasions all of the techniques were determined lawful by the Department of Justice and judged appropriate for the circumstances."
That argument suffered an unexpected blow this week.
In a little-noticed CNN interview, John Yoo, a primary author of the torture memos, took a surprising position. Although the former Office of Legal Counsel lawyer isn't sure that the Senate torture report is accurate, he says that if all of the interrogation tactics it describes were really deployed by CIA officers, some of them broke the law and are vulnerable to prosecution. Here's a transcript of the exchange:
When you read this report and you read about the techniques that were used, forced rectal feeding, agency officials threatening to rape the mothers of prisoners, people with broken limbs being forced to stand for hours and hours, deprived of sleep for up to one week.
Doesn't that strike you as torture?
Well, those are very troubling examples. They would not have been approved by the Justice Department. They were not approved by the Justice Department at the time. But I have to question whether they are true because I can't take the face value of the committee's report because there were no Republicans involved. You know, the investigations intelligence committee are traditionally bipartisan and the worst thing, from a lawyer's perspective, from my perspective, is the committee didn't interview any witnesses.
And so you have these reports but they never gave a chance -- gave a chance to the very participants of the people being accused to explain themselves. And so I will want to know more about what happened in any of these cases and to see what really happened. But I agree with you, if there were people who had to undergo what you have just described, none of those were approved by the Justice Department. I don't believe they're approved by the headquarters at CIA, too.
Instead what you had I think you was a lot of chaos and miscommunication going on in the very first months after 9/11 when both people in the White House, the executive branch and Congress, were demanding that the CIA become aggressive and get started on going after al Qaeda.
But, John, if you'd made a fair point that the Republican minority did not join in, and it would have given it more credence, but the practices that they're describing, as I understand it, are taken from the CIA's own accounts, are you saying that you think the committee has doctored those reports?
What I'm worried about -- and this is what -- don't take my word for it. This is what CIA ex-directors have been saying over the last few days and they appear in the CIA's own answer and in the minority report to the committee, that these were all cherry picked out of millions of documents and that we don't have the context to understand these are classified documents, of course, many of them, so we can't see the underlying documents. That's why we really need to rely in these kind of situation under being bipartisanship and a chance for people to appear and testify before the committee.
But I agree. Look, Fareed, I agree with you, if these things happened as they are described in the report, as you describe them, those were not authorized by the Justice Department. They were not supposed to be done and those people who did those are at risk legally because they were acting outside their orders.
There is, of course, no reason to think that the Senate report fabricated any torture techniques. It is widely accepted, even among the spy agency's defenders, that prisoners were, in fact, subject to the "forced rectal feeding," or anal rape, that Zakaria mentions. And so we have a rather extraordinary development. Even the attorney who famously said that it might be legal for the president to order an innocent child's testicles to be crushed thinks that some of what the CIA did was illegal. He's just a step away from acknowledging that the law compels a prosecution.
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