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Guest Post: They Knew It Was Illegal

The Senate Intelligence Committee report released December 9 confirms many already-reported facts about the CIA torture program, including the agency’s use of brutal stress positions, forced standing, extended sleep deprivation with bright lights and loud noise, waterboarding, and throwing detainees into walls or closing them into coffins.

It also contains new details showing that CIA torture was even more egregious than previously thought—painful restraints, use of punitive “anal feeding” and “anal rehydration,” and forcing detainees with broken legs to stand shackled against a wall. The tactics clearly took a heavy toll, especially in combined and long-term use, and added on top of extreme deprivation of sleep and human contact. Many detainees were severely affected by the tactics used, both physically and mentally—one is described as “clearly a broken man,” another “on the verge of a complete breakdown.”

But perhaps the most important revelation in the report is not about the torture itself but rather about the legal culpability of the CIA. The report contains a key passage on page 33 revealing that senior lawyers at the CIA in mid 2002, at the very beginning of the CIA’s program, drafted a letter to the Attorney General in which it is expressly acknowledged that the interrogation tactics that came to be known as “enhanced interrogation techniques” violated the US torture statute. The draft letter requested that the Attorney General provide the CIA with “a formal declination of prosecution, in advance”—basically, a promise not to prosecute, or immunity. The document was shared even with CIA interrogators involved in the nascent program. From the beginning, in other words, key CIA officials were well aware that these techniques were clearly unlawful.

This document not only calls into question arguments that CIA torturers relied on legal counsel before engaging in torture, it reveals that the arguments of politicians and pundits since the program was revealed—that the illegality of the tactics was never clear—are revisionist histories. We know now that at the relevant times, many (if not most) of the relevant people knew that the tactics were torture, and were illegal.

According to the report, the key letter was not sent to the Attorney General, but we know separately from an internal Department of Justice investigation report issued in 2009 (see page 28) that the CIA then asked the Justice Department for a declination again soon after, in a meeting at the White House with several key White House, Justice Department, and FBI lawyers, including the head of Justice’s criminal division, Michael Chertoff. Chertoff turned them down. The FBI—already disturbed by what it knew of the program—also informed the CIA at that point that it would not take part in any CIA interrogations. At that point, it seems to have become clear to the CIA that they needed to work solely with the Justice Department’s Office of Legal Counsel (OLC) and Vice President Dick Cheney’s senior aide David Addington—attorneys who were more willing to bend the law to achieve their intended result—to finalize a formal OLC opinion to “authorize” the illegal acts for which they had already sought advance pardons. That effort resulted first in a July 13 letter from John Yoo to the CIA General Counsel and culminated in a formal document that came to be known as the August 1 OLC Torture Memo. That memo, which provided an almost ludicrous and strained argument for how the techniques might be legal under U.S. and international law, was recanted later in the Bush administration and its legal analysis has been thoroughly discredited, including in the SSCI report.

The main point is: this section, and in particular the revelation about the April 2002 document in which it is acknowledged that the tactics violate the torture statute, dramatically undermines the credibility of previous claims by the Bush White House and the CIA that they did not know whether the interrogation tactics were legal until they received guidance from OLC. The document cited on page 33 shows that the CIA knew their tactics were illegal before receiving such counsel, but were seeking a legal cover – at first, via an immunity-giving advance declination, but when that failed, apparently the OLC memo. This is legally important because it utterly spoils the potential legal defense of “good faith reliance on counsel,” whereby a person who has committed an illegal act can in some instances escape liability if they show that they were relying, in good faith, on advice from an attorney. Since there is no good faith here – key CIA officials already knew the tactics were illegal before requesting legal counsel – the defense fails. And so does the CIA and White House effort to legalize the illegal.

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About the Author

is an Advocacy Director at Human Rights Watch. He was previously Human Rights Watch’s Senior Terrorism and Counterterrorism Researcher. Follow him on Twitter (@johnsifton).