One of the cells at the newly opened Baghdad Central Prison in Abu Ghraib. (Photo: Getty Images)
The Obama administration intends to declassify and publicly release three Justice Department memorandums drafted in May 2005 that gave CIA interrogators the legal authorization to torture "high-value" detainees as well as a list of techniques to use against the prisoners, according to a report in Newsweek.
According to a list of still-secret documents related to the Bush administration's "enhanced interrogation techniques" obtained from the ACLU, the May 2005 memos were signed by Steven Bradbury, former head of the Justice Department's Office of Legal Counsel (OLC).
However, one of the memos Bradbury signed, dated May 10, 2005, was largely one in which he reinstated elements of an August 2002 torture memo drafted by Jay Bybee and John Yoo, former deputy assistant attorney generals at OLC, which spelled out exactly what techniques interrogators could use against prisoners and was written for the CIA.
That memo, along with another August 2002 memo written by Yoo and signed by Bybee, was withdrawn in October 2003 by Jack Goldsmith, former head of the OLC. Goldsmith wrote in his book, "The Terror Presidency," that the August 2002 memos were "legally flawed" and "sloppily reasoned."
But Bradbury, who succeeded Goldsmith in early 2005, quietly reinstated the memo. Bradbury's May 10, 2005, legal opinion on "whether CIA interrogation methods violate the cruel, inhuman, and degrading treatment standard under federal and international law ... reportedly concludes that past and present CIA interrogation methods do not constitute cruel, inhuman and degrading treatment," according to the ACLU.
Another May 10, 2005, memo Bradbury drafted expanded upon a list of approved methods for interrogating detainees. According to an Oct. 4, 2007, story published in The New York Times, "the new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures."
Documents obtained from the ACLU identified the subject of this memo as "Authorized Interrogation Techniques."
"Mr. Gonzales approved the legal memorandum on 'combined effects' over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion's overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be 'ashamed' when the world eventually learned of it," the Times report added.
Comey's prediction will likely be borne out. According to Newsweek, one senior Obama administration official who spoke to the magazine on condition of anonymity described the memos as "ugly" and said they could cause embarrassment for the CIA.
These memos were the subject of a four-year-long internal investigation conducted by the Justice Department's Office of Professional Responsibility. The probe centered on whether Yoo, Bybee and Bradbury provided the White House with poor legal advice and violated "professional standards." The probe was completed last year and a classified report on the matter is said to be highly critical of Yoo, Bybee and Bradbury's legal work in areas related to interrogation, detention and domestic surveillance. Bybee is now a 9th Circuit Court of Appeals judge in San Francisco. Yoo is a visiting law professor at Chapman University in Orange, Calif.
The May 30, 2005, memo Bradbury wrote is the "use of enhanced interrogation techniques by the CIA." The ACLU was unable to obtain a further description of Bradbury's memorandum.
In a January 22 executive order, President Obama outlawed the use of such aggressive interrogation tactics. As such, the administration concluded there was no longer a valid reason to continue to classify the memos, Newsweek reported.
Sen. Dianne Feinstein, chair of the Intelligence Committee, announced earlier this month that her committee will conduct a year-long secret investigation into the CIA's "enhanced interrogation" and detention practices and whether the methods resulted in actionable intelligence as Bush administration officials have maintained.
The California Democrat also responded to excerpts of a secret report prepared by the International Committee of the Red Cross (ICRC) that concluded the abuse of 14 "high-value" detainees the agency interviewed "constituted torture."
"In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment," according to the ICRC report, a copy of which was obtained by journalist Mark Danner, who published excerpts from it in The New York Review of Books. Since the ICRC's responsibilities involve ensuring compliance with the Geneva Conventions and supervising the treatment of prisoners of war, the organization's findings carry legal weight.
The ICRC report also found that there was a consistency in many details from the detainees who were interviewed separately and that the first "high-value" detainee to be captured, Abu Zubaydah, appeared to have been used as something of a test case by his interrogators. Zubaydah told the ICRC "interrogators wrapped a towel around my neck; they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face."
Feinstein told Newsweek, "I now know we were not fully and completely briefed on the CIA program."
Last year, Dick Cheney admitted in exit interviews that he personally "signed off" on the waterboarding of Zubaydah and two other alleged terrorist detainees and personally approved brutal interrogations of 33 others.
"I was aware of the program, certainly, and involved in helping get the process cleared, as the [Central Intelligence] Agency, in effect, came in and wanted to know what they could and couldn't do," Cheney said in an interview last December with ABC News. "And they talked to me, as well as others, to explain what they wanted to do. And I supported it."
Last week, CIA Director Leon Panetta enlisted the help of former Republican Sen. Warren Rudman of New Hampshire to assist him with the Senate Intelligence Committee's probe of the agency's Bush-era interrogation and detention practices, Panetta's office said.
Panetta said he does not support any inquiry that would lead to the prosecution of CIA personnel who carried out the interrogations.
Panetta told agency employees in a letter March 16 that he has been "assured" that the Intelligence Committee's goal "is to draw lessons for future policy decisions, not to punish those who followed guidance from the Department of Justice. That is only fair."
But the imminent release of the May 2005 memos will no doubt lead to further calls for investigations and prosecutions of Bush officials who signed off on, and approved, the torture of prisoners.
In fact, the ACLU has already called on Attorney General Eric Holder, last Wednesday, to appoint a special prosecutor to launch a probe into the Bush administration's torture practices.
"The fact that such crimes have been committed can no longer be doubted or debated, nor can the need for an independent prosecutor be ignored by a new Justice Department committed to restoring the rule of law," ACLU Executive Director Anthony Romero said last week, a few days after excerpts of the ICRC report were published.
"Given the increasing evidence of deliberate and widespread use of torture and abuse, and that such conduct was the predictable result of policy changes made at the highest levels of government, an independent prosecutor is clearly in the public interest," Romero said.
Newsweek reported that former CIA Director Michael Hayden was "furious" that the Bybee/Bradbury memos were going to be released publicly and he tried to try to thwart plans to declassify the memos by intervening directly with the Obama administration. Apparently, the White House has sided with Holder, who is said to have made the case for releasing the documents publicly.
"Faced with a court deadline in a Freedom of Information Act lawsuit regarding the memos filed by the ACLU, Justice lawyers asked for a two-week extension because the memoranda are being reviewed for possible release," Newsweek reported.
Last Thursday, Holder issued sweeping new Freedom of Information guidelines for all executive branch agencies to "apply a presumption of openness when administering the FOIA.
"The American people have the right to information about their government's activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency," Holder said.
Holder said FOIA requests would be denied and records withheld "only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law." But even then, all federal agencies were directed to at least "release records in part whenever they cannot be released in full."