The long-awaited Justice Department report on the lawyers who wrote the so-called torture memos provides gruesome new details about the CIA’s harsh interrogations of high-level Qaeda suspects, highlighting issues that could ultimately complicate the Obama administration’s efforts to try the detainees in federal court or even before military commissions.
The Obama Justice Department, under Attorney General Eric Holder, has struggled to figure out ways to bring detainees like Khalid Sheikh Mohammed (KSM), and as many as 20 to 30 others to justice without having their trials get bogged down over claims that they were tortured or otherwise abused by the U.S. government.
But some of the fresh details in the report suggest the Justice Department’s challenge is even more daunting than they had publicly acknowledged and that concerns about what the CIA was doing troubled more than a few high-level Bush administration lawyers for some time.
Much of the attention so far has been over the CIA’s use of waterboarding (in effect, simulated drowning), a technique that was actually used against only three detainees: KSM, Abu Zubaydah, and Abd al-Rahim al-Nashiri, the alleged architect of the October 2000 bombing of the USS Cole.
But the 261-page report, by the Justice Department’s Office of Professional Responsibility (OPR), shows that the real-life application of some of the other practices used by the CIA against a far larger population of detainees may have been every bit as disquieting as waterboarding.
One such practice was sleep deprivation—a method that was initially approved as one of a number of “enhanced interrogation techniques” by Justice’s Office of Legal Counsel (OLC) in a classified memo on Aug. 1, 2002.
But when one Bush administration lawyer—Dan Levin, FBI Director Robert Mueller’s former chief of staff—took over as acting chief of OLC in 2004 and began reviewing the issue, he was “surprised” to learn that none of the Justice lawyers had ever asked the CIA about the actual methods that were being used by the agency’s interrogators to keep prisoners awake for extended periods of time.
Levin then pressed the CIA for details about this—and got back some unsettling responses.
“He learned that detainees were typically shackled in a standing position, naked except for a diaper, with their hands handcuffed at head level to a chain bolted to the ceiling,” the Justice Department report states. “In some cases, a prisoner’s hands would be shackled above the head for more than two hours at a time. CIA personnel were expected to monitor the subjects to ensure that they carried all their weight on their feet rather than hanging from the chains, which could result in injuries. In some cases, a prisoner would be shackled in a seated position to a small stool so that he had to stay awake to keep his balance."
Levin emerges in the report as one of a number of Bush administration lawyers who had serious reservations about the legal memos written by former OLC chief Jay Bybee (now a federal judge) and one of his deputies, John Yoo (now a Berkeley law professor), to justify the CIA program.
When he first reviewed another Bybee–Yoo memo, also dated Aug. 1, 2002, that concluded that the president’s powers as commander in chief meant he could ignore a federal law banning torture, “he remembered having the same reaction I think everybody who reads it has—‘this is insane, who wrote this?' ” the Justice report states.
(The OPR report concluded that Bybee and Yoo be referred to their state bar associations for violating their professional standards as lawyers. That recommendation was rejected, however, by Associate Deputy Attorney General David Margolis, who concluded that OPR had not been able to identify a clear and “unambiguous” legal line that the lawyers had crossed.)
Although Levin recrafted the broad legal underpinnings for the CIA program, dropping some of the more controversial arguments used in the original Bybee–Yoo memo, he also never put a stop to any of the particular techniques being used by the agency. Still, according to the report, he “thought it would be very, very hard to conclude that it didn’t violate” a provision of an international Convention Against Torture that banned “cruel, inhuman, and degrading” treatment of prisoners, according to the report.
Levin was hardly the only Bush administration lawyer to be plagued by such doubts. After Levin left OLC at the end of 2004, his successor, Steven Bradbury, issued new memos in 2005 that once again gave the green light to the CIA’s use of harsh tactics. But another senior lawyer in the office, Patrick Philbin, shared many of the reservations that Levin had—especially after learning more about how the CIA program actually worked.
“I did not think the [Bradbury] memo provided a sufficient analysis to conclude that depriving a person of sleep for days on end while keeping him shackled to the ceiling in a diaper and at the same time using other techniques on him would not cross the line into producing ‘severe physical suffering,' " the OPR report quotes him as saying.
The report provides some fascinating new glimpses into the inner battles within the Bush administration over these issues. After Philbin, a conservative stalwart who had once clerked for U.S. Supreme Court Justice Clarence Thomas, expressed his reservations about the CIA program as well as President Bush’s warrantless wiretapping program, he was scolded by Vice President Dick Cheney’s chief legal counsel, David Addington. In a private conversation with Addington in November 2004, Addington told Philbin that he would block him from getting any new job in the Bush administration and that by objecting to harsh interrogations and warrantless wiretapping, Philbin “had violated his oath to uphold, protect, and defend the Constitution of the United States.”
But while the turmoil within the Bush administration may now belong to the history books, the real news from the OPR report is that the fallout from the CIA’s practices is far from over—and almost certainly will resurface again if and when any of the detainees makes it into a courtroom.