More on the torture memos in this guest post by friend and former coworker Suzanne Ito of the ACLU…
Thursday afternoon, the Department of Justice (DOJ) released four secret memos written by then-Office of Legal Counsel (OLC) attorneys Steven Bradbury and Jay Bybee. The memos provided the legal framework for the CIA’s use of waterboarding and other illegal interrogation methods that violate domestic and international law.
It was back in October 2003 that the ACLU first filed a Freedom of Information Act (FOIA) request (PDF) seeking information about the treatment of detainees held in U.S. custody overseas. In June 2004, after being rebuffed by the government (PDF), we filed a lawsuit to enforce that FOIA request. Since then, the ACLU has received hundreds of thousands of pages relating to the widespread torture and abuse of prisoners held in U.S. custody abroad.
First of all, we welcome President Obama’s decision to release these memos with minimal redactions. In this case, he’s made good on his promise of greater transparency in government.
But transparency isn’t enough. We need accountability. These documents prove without a doubt that high-level officials—including those in the Office of Legal Counsel — caused the torture of prisoners. Indeed, the memos aren’t, in fact, legal memos at all. Jameel Jaffer, Director of the ACLU’s National Security Project and counsel on the FOIA lawsuit, said the memos “are simply political documents that were meant to provide window dressing for war crimes.” They were written to insulate the torturers and those who authorized the torture from prosecution for acts that are illegal under several domestic and international laws.
In a statement released Thursday, President Obama said: “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.” We think this is unacceptable. Indeed, if longstanding legal prohibitions on torture are to have any meaning, all torturers must be held accountable. But it should be noted that President Obama has not ruled out an investigation into torture and abuse, and where warranted, criminal prosecution, of those who authorized this abuse.
Now that the memos are out, some hard questions need answers. Among them: the Bybee memo released yesterday was written on August 1, 2002. According to a DOJ Office of Inspector General report (PDF), Abu Zubaydah was subjected to interrogation and “borderline torture” in the spring of 2002, before the Bybee memo was issued. This raises serious concerns about the treatment of detainees before this first torture memo was issued, and demands an investigation into the actions of those who interrogated Abu Zubaydah during that time.
Also, what about the still-outstanding documents that we haven’t seen? Our lawsuit still seeks more information about the treatment of detainees, including a report by the CIA inspector general concerning the CIA’s interrogation and detention program, and a September 2001 directive from then-President Bush authorizing the CIA to set up secret detention centers overseas. Other ACLU FOIA requests seek the release of memos written by White House staff in 2003and 2004 providing the CIA with assurances that the torture program was lawful, and documents relating to the National Security Council’s supervision of the CIA’s torture program. Clearly, much still remains to be known.
But it’s not too soon to demand accountability. Attorney General Eric Holder advocated for the release of these memos. Ask him now to appoint an independent prosecutor to investigate those who authorized the abuse and torture of detainees.