The Post has an explosive story -- what will be portrayed as an explosive story -- that the government's attorneys were asked to precisely define the legal parameters for acceptable interrogation procedures. Exactly how far could US personnel go if they had to before they were in violation of either US or international law? What, precisely, is going to be considered torture? What did the fact that the Guantanamo detainees were clearly not prisoners of war mean for the ways they could be interrogated?
The memo seems to counter the pre-Sept. 11, 2001, assumption that U.S. government personnel would never be permitted to torture captives. It was offered after the CIA began detaining and interrogating suspected al Qaeda leaders in Afghanistan and elsewhere in the wake of the attacks, according to government officials familiar with the document.
The legal reasoning in the 2002 memo, which covered treatment of al Qaeda detainees in CIA custody, was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Department's detention center at Guantanamo Bay, Cuba. At that time, Defense Secretary Donald H. Rumsfeld had asked the lawyers to examine the logistical, policy and legal issues associated with interrogation techniques.
Of course, what the administration had the lawyers look at, and what the administration told interrogators it was legitimate to do, are two separate issues. All this memo proves is that the administration asked the question.
Wouldn't you rather they asked the question?
In the wake of 9/11 and as the nation prepared for war against an enemy the likes of which we had never fought before, don't you want to know that they asked all the questions, thought through what was legal -- as a jumping off point to thinking through what was appropriate -- and really thought those issues through, looked at them fresh, rethought them?
Still, the 2002 and 2003 memos reflect the Bush administration's desire to explore the limits on how far it could legally go in aggressively interrogating foreigners suspected of terrorism or of having information that could thwart future attacks.
I'm sorry, but there ain't no damn crime there. First of all, I want the government to be aggressive and I want them to be thinking about every possible means to protect us -- but I don't necessarily want them to use every possible means to protect us. This doesn't prove the administration decided the law was meaningless, and interrogators should operate as they liked. They decided the law was meaningful, but the government owed it to the public they are supposed to protect to ensure that they're milking every last inch of value out of the law.
A spokesman for Human Rights Watch of course pronounced this nothing less than an effort to find a legal means to skip out on accountability for war crimes.
The Justice Department's interpretation for the CIA sought to provide guidance on what sorts of aggressive treatments might not fall within the legal definition of torture.
The 2002 memo, for example, included the interpretation that "it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture." The memo named seven techniques that courts have considered torture, including severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person.
"While we cannot say with certainty that acts falling short of these seven would not constitute torture," the memo advised, ". . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law."
"For purely mental pain or suffering to amount to torture," the memo said, "it must result in significant psychological harm of significant duration, e.g., lasting for months or even years." Examples include the development of mental disorders, drug-induced dementia, "post traumatic stress disorder which can last months or even years, or even chronic depression."
Of mental torture, however, an interrogator could show he acted in good faith by "taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience" to show he or she did not intend to cause severe mental pain and that the conduct, therefore, "would not amount to the acts prohibited by the statute."
In 2003, the Defense Department conducted its own review of the limits that govern torture, in consultation with experts at the Justice Department and other agencies. The aim of the March 6, 2003, review, conducted by a working group that included representatives of the military services, the Joint Chiefs of Staff and the intelligence community, was to provide a legal basis for what the group's report called "exceptional interrogations."
I'm not a lawyer (but of course, neither are the Post reporters.) It sounds as if what they came up with would have been controlling only for situations where interrogators were operating only under direct presidential order.
But more to the point, until the Post gets the documents that were ultimately produced controlling interrogation procedures, all they've got is a working thought process -- okay, here are possible changes in the limitations. The JAG lawyers went ballistic. I think that's a good thing. It means there was a robust dialogue challenging people's assumptions for a situation that challenged all our assumptions of what internaitonal conflict was.
But that's all it is until there's a list of interrogation procedures.
And, by the way, if someone wants to argue that this legal exploration in and of itself would have convinced people, without any other finding, and despite a more restrictive list of acceptable interrogation procedures, that they could start moving the goal posts on their own hook, they're going to have an awfully hard time. How many interrogators out in the field will have read these legal interpretations, or will be willing to risk acting in contradiction to what they'd previously been taught based on legal goobledy-gook without explicit authorization?