The Torture Memos

Erik Kain

Erik writes about video games at Forbes and politics at Mother Jones. He's the contributor of The League though he hasn't written much here lately. He can be found occasionally composing 140 character cultural analysis on Twitter.

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58 Responses

  1. Gherald L says:

    > How Obama can grant immunity on this is simply beyond me

    It has something to do with “he shall have power to Grant Reprieves and Pardons for Offenses against the United States”, plus the Department of Justice answering to him.

    I don’t see anyone (be they outside the DOJ or in) bothering to prosecute CIA officials against a presidential guarantee, so it’s a de facto immunity…. at least as far as U.S. courts and his tenure in office goes.Report

  2. Grant says:

    It’s an apparent immunity for the CIA officers who were told by the Bush Justice department that what they were doing was legal… but notice it is rather conspicuuopsly NOT anything resembling immunity for the people in that justice department who did the telling.Report

  3. E.D. Kain says:

    It will be fascinating to see this play out.Report

  4. First – thanks for the aggregation of all this. I’d love to see some of the GOP Partisan (following Mr. Schwenkler’s advice here) reactions (which I will as soon as I go onto Memeorandum).

    Second, with the caveat that this aggregation is all I’ve yet had time to read, this sounds like as good as realistically could have been hoped for. Frankly, despite my passion on this subject, I don’t think I would support prosecution of individual CIA officers. I do, however, fully support prosecution of the instigators. But even more important than that is just the simple fact of exposing what happened to the public eye.Report

  5. Dave says:

    ^^^^ What he saidReport

  6. Roque Nuevo says:

    How Obama can grant immunity on this is simply beyond me.

    Here’s why:

    My guess is that there will be no investigation because they are too many skeletons in the Democratic closet that are too hot to let loose. Any investigation of rendition would expose the moral cowardice of Clinton’s team vis-à-vis rendition and protecting Americans against al-Qaeda, as well as their post facto lies about demanding that Arab governments pledge to treat rendered terrorists according to U.S. and international standards. Such an investigation would also unavoidably open up the all the material deliberately hidden by the 9/11 Commission about how very little the Clinton and Bush administrations cared about effectively protecting Americans before 9/11.

    Michael Scheuer


    I do not believe that any American president has ever orchestrated, constructed or so closely monitored the torture of other human beings the way George W. Bush did.

    Scheuer shows why this is just wrong:

    All of the whining to date has been nothing more than a Democratic effort to politically hang Mr. Bush — which is not a bad idea for his starting of the Iraq war — and to make sure that the far worse things that happened to those rendered under the direction of that merry pair of felons, Clinton and Berger, are hidden from public view.


  7. E.D. Kain says:

    As Ambinder said, it all depends on intent…and I think it needs to be resolved on a case by case basis. Oh, and there really aren’t any Right-wing responses on memeorandum yet, and I’ve hopped around the intertubes for a while and found nothing. Dead silence.Report

  8. Gherald L says:

    Here’s Unreligious Right, my best source for pro-torture national/exceptionalismReport

  9. Roque Nuevo says:

    Abe Greenwald:

    [Sleep deprivation, slapping, placing on high-ranking al Qaeda suspect in a box with what he was told was a stinging insect], ladies and gentlemen, is what supposedly made America the moral equivalent of al Qaeda. Do you suppose that if Barack Obama could get a guarantee that American captives of terrorists would from now on be subjected to no more than the above, he would waste a second in okaying it?

    Slapping is a nasty business, but if you tell me it’s torture I’ll slap myself to make sure I’m awake. Though chances are I am, seeing as I’m regularly sleep-deprived. And confession by bee sting simply must be used in the next Austin Powers movie.

    Nevertheless, Obama describes it all as “a dark and painful chapter in our history.” This is national security as farce. Here’s what gives the game away: in Obama’s statement we read, “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

    What’s the sentence for assault with an imaginary insect, anyway?


  10. Roque Nuevo says:

    Damn co-opters! First you co-opt the word “marriage” and now the word “torture!” By the way, is “beheading captives on video” really considered torture? I thought that was murder…

    You mix in some (failed and juvenile) sarcasm with some silly nit-picking instead of addressing the substance of Emmanuel’s comment. This will get you some knowing nods and smiles from your friends but it lowers your standing otherwise.Report

  11. Jaybird says:

    I hope that more and more and more of these get released.

    Hell, release all of Clinton’s stuff. H Dubya’s. Reagan’s. Carter’s. Nixon’s. Johnson’s. Hell, release the Kennedy files. Let’s get it all out there.

    Except for Ford. We should leave Ford alone.Report

  12. Jaybird says:

    That probably didn’t come out the way I intended… I think that these things are horrific and need to come to light. I hope that the people who supported these things are shamed. I hope that every single future President acts knowing that his successor could very well make everything he does public.

    I think that we’d all be better off if that were the case.

    While we can no longer impeach Bush or Cheney, I do hope that there are trials. Even if the trials come out with no real conclusion, I hope that all of the evidence is made public. All of it. Nothing would make me happier than Bushism being discredited for a generation.Report

  13. This is from a couple of years ago. Made a point of keeping the radio off while driving to softball practice today.

    You think it’s tough talking to your kids about sex? Try talking to them about torture.

  14. typo says:

    Several right-wing reactions:
    Atlas Shrugged simply concludes that this revelation proves, once again, that Obama hates America, while NewsBusters devotes their entire response to insect jokes.Report

  15. Katherine says:

    Thanks, typo. Didn’t realize libertarians hated human rights so much.Report

  16. Roque Nuevo says:

    Thanks, Katherine. But we already knew that you love human rights more than your intellectual opposition. However, you’re doing the right thing by reminding us at every opportunity.Report

  17. Mike says:

    Katherine, and I never realized that Libertarians and Republicans liked that the government created secret laws either.

    You learn something new every day during this Presidency, it seems.Report

  18. Atlas Shrugs is not a site that many of us libertarians look upon with any kind of respect.Report

  19. Katherine says:

    I’m sure it isn’t, Mark. I was just being snarky there and it wasn’t fair of me. I’m just so sick of people crying “small government!” all day while they support unlimited government powers on things like torture and domestic surveillance, and expecting to be taken seriously. How many of the people out protesting on Wednesday about the government taking away their freedoms by spending money would have any concern whatsoever about this? Very few, I think.Report

  20. E.D. Kain says:

    Sadly, I think you are exactly right on that count, Katherine…Report

  21. Jaybird says:

    Allow me to say that I am sick and tired of the whole “hey, if you’re a libertarian, you’ll love somalia!” schtick.

    Hey, if you like having the government in charge of monetary policy, why not move to Zimbabwe?Report

  22. Roque Nuevo says:

    they support unlimited government powers on things like torture and domestic surveillance

    Sadly, I think you are exactly right on that count, Katherine…

    Sadly, Katherine can’t stop using this kind of straw-man exaggeration. People will disagree where the limits should be placed, but nobody supports such unlimited powers. In fact, the whole issue is raised simply because the Bush admin set those limits where others don’t want them to be. Unlimited it certainly was not. If Katherine/ED Kain were to engage in argument about these limits instead of engaging in name-calling and admiring their own moral righteousness, we might find out how well-founded ideas are.

    The point is, we do not have a legal framework adequate to asymmetric warfare, which would allow us to deal with enemy combatants and still remain true to our historic values. The kind of moral preening Katherine/ED Kain engage in is not helpful in this regard.Report

  23. Roque – you say that our existing legal framework is inadequate to deal with asymmetric threats. Fair enough – that may well be a debate worth having. But the Bush Administration was not charged with making the law or creating a new legal framework, only with handling its responsibilities within the strictures of the existing legal framework. And Congress was not exactly hesitant to make changes to that legal framework (whether or not I may agree with those changes). Allowing the Executive to simply change the legal framework when it decides that legal framework is inconvenient is a recipe for precisely the growth of executive power (in any arena, including both domestic and foreign policy) that many people find disturbing.Report

  24. Roque Nuevo says:

    Of course it’s a debate worth having. Of course this is a task for the Congress—although it’s the president’s job to demand that Congress step up to the plate since they’re not doing it on their own. They have abdicated their responsibility. I don’t think that the Bush admin changed anything. They adapted what existed to their needs by arguing that certain practices were legal under the existing framework. I’m talking about a new legal framework that would clarify the present murky situation, where captive enemy combatants have rights but not all the rights we have as citizens and so forth. What’s been done so far is simply patchwork. I always thought that this was a great failure of the Bush admin, but now I see that constitutional scholar President Obama isn’t interested in this either.

    I agree that this would be an interesting debate to observe for a layman. What irritates me is that people like Katherine/ED Kain can only see the situation as a chance for them to show off their righteousness (as if they and their ilk were the only people concerned about human rights), which only makes it all that much harder for the real job to get done.Report

  25. Roque – but you can’t say that Congress abdicated their responsibility. Congress did what it did, and didn’t do what it didn’t do (given the PATRIOT ACT, etc., etc., the fact is it did do quite a bit). Whether you think it did enough or even if you think it did nothing, that does not create grounds for saying that they abdicated their responsibility and therefore whatever interpretation the Bush Administration put on the pre-existing law must be reasonable because otherwise you think that the administration would have been overly handicapped. The definition of torture is pretty clear even under US law – and so far as I can tell the arguments made that at least some of these acts are “not torture” under that definition strain credulity as a matter of law. How, for instance, are sleep deprivation and housing in a box full of insects not “procedures calculated to disrupt profoundly the senses or the personality.” Meanwhile, the entire point of waterboarding is that it creates a “fear of imminent death,” which is explicitly defined as torture under the statute.

    Moreover, so far as I’m aware, there’s no exception in the torture statute for “enemy combatants” or anything of that nature – this is not the Geneva Conventions issue where the Administration has suggested that there is a murky legal territory. All that is necessary under this statute is that the person inflicting the acts do so under the color of law.Report

  26. Jaybird says:

    Perhaps it’s an artifact of my fundamental alienation, but when I think about room 101, I tend to immediately identify more with the guy sweating in the chair than to immediately think about the people being protected from him.Report

  27. E.D. Kain says:

    Really Jaybird? As a self-righteous moralist prick I personally identify most with the rats….Report

  28. Roque Nuevo says:

    The definitions may be clear for you but the application of such definitions is always a matter for the courts and lawyers. All I said was that the Bush admin argued for a wider interpretation than you (for example) will accept. I never said anything like “whatever interpretation the Bush Administration put on the pre-existing law must be reasonable,” even by implication. I admit that I fall on the “wider interpretation” side of the spectrum, but you have no grounds at all to attribute any specific views to me, since I have not expressed them.

    Just because Congress “did what it did and didn’t do what it didn’t do” does not let them off the hook as far as I’m concerned. I’m not really familiar with the Patriot Act, but isn’t this about domestic affairs? Here, we’re talking about our conduct in wartime, which is international affairs. I’m not aware that Congress has legislated on this but I’m probably wrong. If not, then I still say they have abdicated their responsibility since Congress is the only branch of government with the authority to make laws at all. Also Bush failed by not calling on them to step up and it looks like Obama will fail here as well.

    I say that the situation calls for a thorough review of our legal framework. This is not chopped liver, as my Mom used to say. It’s complicated and requires the efforts of probably hundreds of real constitutional scholars (not fake ones like Obama). The president has the power of convocation to do this but in the end, it’s the Congress’s job, which they could do even without the president’s involvement. They won’t do it while they’re involved in moral posturing and grandstanding, which means that they won’t do it ever.Report

  29. Roque Nuevo says:

    Jaybird: That what everyone does, believe it or not. That’s because Orwell was a great artist, not because you have any special moral sensibility or “fundamental alienation.”

    It’s a good point to bring up, nevertheless. The situation described by Orwell had absolutely nothing to do with today’s situation. It was similar to the Stalinist Terror. The key point, both in Orwell and in the Terror, is that suspects, like Winston, had done nothing wrong and posed no danger to anyone except possibly to the regime. None of the millions who were murdered in the Terror were terrorists who posed a danger to society. Nobody was being protected from Winston, which is the whole point of Orwell’s book. Don’t you think that today’s situation is different?Report

  30. Roque Nuevo says:

    ED Kain:

    Rats are not “self-righteous moralist pricks.” They’re just rats. You then would identify with O’Brian, who was the very archetype of a “self-righteous moralist prick.” Just goes to show you…the artist can only do so much, but people will identify with whom they will…Report

  31. E.D. Kain says:

    Glad to see my sarcasm wasn’t lost on you, Roque.Report

  32. Well, Roque, I am a lawyer. The strained reading of the statute required to conclude that these practices were “not torture” is beyond absurd.

    It would be wonderful if the courts were able to determine whether these procedures were torture or not – unfortunately, for that to happen would require a “case or controversy,” which means that there would either need to be a prosecution or a civil rights lawsuit and that the government chose not to invoke the state secrets privilege in the course of same.

    This has nothing to do with “letting Congress off the hook,” either. The President has to comply with existing law, whether or not he thinks that it provides an appropriate legal framework for doing what he believes is necessary. Moreover, the definition of “torture” does not contain any exceptions for foreign affairs – and the President doesn’t get to read such an exception into the statute.Report

  33. Dave says:

    We have an adequate system despite what the previous administration thought.Report

  34. Jaybird says:

    Roque, if I could be sure that the guys we caught were, seriously, the number 3 guys in Al Qaeda, I *STILL* wouldn’t want them tortured.

    I would be cool with summary execution. I would be cool with telling them that if they did not provide information that was verifiable and useful that they would be given a cigarette and a blindfold and a firing squad.

    My problem is that I don’t know how many of the guys detained were just stupid people caught in the wrong place at the wrong time, or rivals of a warlord handed over for cash, or what have you.

    We could bomb the everlivingfug out of them without losing our souls. We could have a firing squad without losing our souls. We could even “err on the side of protecting Americans” when it came to the application of both of the above without losing our souls.

    We cannot create a Room 101 without becoming damned.Report

  35. Roque Nuevo says:

    Well, Mark, I understand you. But I also understand that if you get two lawyers in a room, they’ll argue about the law. That’s what they’re trained to do. I respect you, but I don’t take your opinion as definitive, given the above. Are you an appeals lawyer? That is, are you an expert on the Constitution who can argue cases in the Federal Courts? Get two of these lawyers in a room and they’ll argue about more than the law— they’ll argue about the philosophy of the law, the history of the law, and the proper style for writing the law, probably for days. I’m saying that we need a group of these kinds of people to hash things out so that Congress can finally pass a law. If this happens (which it won’t), then we’d have something like a national consensus on these things. I don’t believe that this it the province of the courts, either. Correct me if I’m wrong. They’re supposed to interpret the law, not make it.

    As it is now, all we have is moral posturing and political shows.Report

  36. Roque Nuevo says:

    Jaybird: “We cannot create a Room 101 without becoming damned.
    Then we’ve been damned for a long time, if you believe Scheuer.Report

  37. Jaybird, disagree though we often do, I dig yr style.Report

  38. Well, yes, I can argue cases in the Federal Courts, but that’s not really relevant (almost any litigator is admitted to at least one federal court, and state courts have been known to handle federal constitutional claims in some instance).

    There is, however, a major difference here from the stereotypical case of two lawyers arguing with each other for days – these are OLC attorneys, not trial lawyers. OLC attorneys are like compliance attorneys for the Executive branch – their job isn’t to create novel interpretations of the law but to provide guidance to the Executive on what it is and is not allowed to do. In this case, everything I’ve read so far suggests that they acted like advocates trying to litigate a position rather than compliance attorneys – they took the Administration’s actions as pre-ordained and then sought to find a way of justifying them legally, making plausible sounding but novel arguments to justify those actions.

    Basically, a compliance attorney is supposed to tell the client what the law is such that, if things ever got before a court of law, the resulting actions would assuredly be in compliance with the law. The trouble here is that at best it’s arguable that the procedures are not legally torture (I don’t even think it reaches the level of being arguable, but for purposes of this comment, I’ll assume it is) but the job of the compliance attorney isn’t to say whether something is “arguably” legal – it’s to provide definitive guidance on what is and is not legal, erring on the side of caution. (NOTE: it’s possible I’m wrong on this, since I haven’t done much compliance work).Report

  39. Gherald L says:

    Interesting Mark, that fits my intuition of what the OLC should be like.

    Do you have any thoughts on the substance/likelihood of Jay Bybee and others being impeached or disbarred?Report

  40. Katherine says:

    Here’s a conservative (and Republican) who’s speaking out against torture: Rod Dreher at BeliefNet:

    Good for him.Report

  41. Gherald – I want to look more at the memos this weekend, since I haven’t looked at them nearly as closely yet as I want to. But I would say that impeachment and/or disbarment is highly unlikely; whether I think it should be highly unlikely may or may not be another matter.Report

  42. Roque Nuevo says:

    Mark: “How, for instance, are sleep deprivation and housing in a box full of insects not ‘procedures calculated to disrupt profoundly the senses or the personality.'”

    It appears that there never were people put in boxes full of stinging insects. There was the consideration of putting one extremely dangerous terrorist in a box with a caterpillar that he might think would sting him—although the interrogator was barred from telling him that it would. The technique was never even used

    “You [the CIA] would like to place Zubaydah in a cramped confinement box with an insect. You have informed us [the Department of Justice] that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box. You have orally informed us that you would in fact place a harmless insect such as a catapiller in the box with him.”

    An additional sentence at the end of this paragraph is redacted in the copy made public Thursday. Later in the same memo, Bybee concludes that “an individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpiller was placed in the box.” Bybee adds, however, that the interrogators should not tell Zubaydah that the insect sting “would produce death or severe pain.”

    The insect interrogation technique, as it turned out, was never used by the CIA, according to a second declassified memo released Thursday.


  43. Gherald L says:

    What matters is what was authorized by the memos, not what the CIA opted to not do because they couldn’t find a mean-enough looking caterpillar.

    How would putting someone with a known insect phobia (as mentioned in the memo quoted) into a confined space with insect(s) not be considered torture?Report

  44. Jaybird says:

    The defense that “we didn’t *REALLY* create a room 101, we just authorized it” ought to be horrifying in the first place.Report

  45. Roque Nuevo says:

    So now people will be prosecuted for thinking about doing this stuff? This righteous wrath run amok.Report

  46. Jaybird says:

    Every now and again, it’s a good idea to hang a government worker.

    It encourages the others.Report

  47. Jaybird says:

    Restated seriously, I wouldn’t mind if the person who wrote such a thing were prosecuted, found guilty, and thrown in jail for the rest of his life.

    They could put a webcam in his cell. A feed from the webcam ought to go to the lobby of the building where the memo in question was written. Under the monitor showing the live 24/7 broadcast of the guy in his cell, there can be a plaque.

    The plaque can say “this guy wrote a memo authorizing room 101”.Report

  48. Roque Nuevo says:

    Great! What’s next, Robespierre? Revolutionar tribunals?Report

  49. Jaybird says:

    *NOW* you understand the slippery slope argument.Report

  50. Roque Nuevo says:

    I understood the slippery slope argument before you were even born. Therefore, I understand that it can’t be as deterministic as you seem to believe. We can always decline to go even further down that slope. If you’re interested, Eugene Volokh has written a lot about this topic.

    In the case at hand, history proves Volokh’s point: Americans have been willing to tolerate a lot of practices in our foreign wars that they would never even consider tolerating at home. I look down on ideas like, “We cannot create a Room 101 without becoming damned” mainly because I lack the Puritan/religious spirit that this idea comes from. I don’t believe in damnation. I think it’s a concept for babies. But, more to the point, we have been engaging in such practices for a very long time–Scheuer only mentions the administrations with which he has direct experience. For example, the so-called greatest generation, in WWII, committed atrocities that would be unthinkable today. Read With the Old Breed, by Eugene Sledge (a WWII Okinawa vet) if you don’t believe me. So, if using these techniques will “damn” us, we’ve been damned at least since WWII. If we are damned, then maybe being “damned” isn’t so bad after all: we still have the greatest standard of living in all history.

    Specifically with respect to the “torture memos,” how can you seriously suggest that people be prosecuted for only thinking about certain practices–especially since reasonable people of good will can disagree as to whether these practices constitute torture. Like putting someone in a cage with a caterpillar! There’s an ancient principle in the law: “nullus vulnero nullus poena” (“no harm, no penalty,” or something like that).Report

  51. Jaybird says:

    “We can always decline to go even further down that slope. ”

    Assumes facts not in evidence.Report

  52. Roque Nuevo says:

    You’re not listening. Here are some facts: we have tolerated much worse behavior in Vietnam, WWII. Then, before that, there was the colonization of the Philippines, which was a long, counterinsurgency. Don’t even get me on the topic of the Indian Wars. And so on. Are these facts enough for you?

    If the slippery-slope was as much a danger as you say–We’re all “becoming damned”–then we’d be tolerating a lot worse than caterpillar torture. Don’t you think?

    In contrast, one can see that the tendency is exactly the opposite of what you say–Americans today tolerate these things less and less.

    The fact that we’re even having this discussion is fact enough to show that I’m right. Imagine someone back in the 1880s raising the issue some government lawyer authorizing the military to hold an in’jun chief captive in a box with a caterpillar when we were giving them syphilis and turning them into hopeless alcoholics.Report

  53. Jaybird says:

    As I said above: We can bomb them to hell and back without becoming damned. We can shoot them until they are dead without becoming damned. Fucking with people because we have the power to fuck with people is in a different category entirely.Report

  54. Roque Nuevo says:

    Assumes facts not in evidence.Report