The world may finally get to read the Bush administration’s infamous “torture memo,” the Aug. 1, 2002, document that provided legal cover for the brutal and humiliating treatment of detainees in George W. Bush’s “war on terror.”
Though the general contents of that memo have been described in books, congressional reports and news articles, the document itself was kept as a highly classified secret by the Bush administration.
In its first two months in office, the Obama administration has released several other legal memos relating to Bush’s expansive views of his powers, but has withheld key memos on the “enhanced interrogation techniques.”
On Thursday, the Justice Department said it had negotiated an extension to a court deadline in a Freedom of Information Act lawsuit brought by the ACLU seeking interrogation-related documents, in part, by agreeing to add the “torture memo” to other documents that might be released within two weeks.
Jameel Jaffer, director of the ACLU’s National Security project, said he “reluctantly consented” to the extension because acting U.S. Attorney Lev Dassin said the package of documents under review would include the Aug. 1, 2002, legal opinion.
The Justice Department had been deliberating whether to release three legal memos from May 2005 that, in effect, reaffirmed Bush’s right to authorize the harsh interrogations, after the earlier memos had been withdrawn in 2003 and 2004 by Deputy Attorney General Jack Goldsmith.
But Goldsmith resigned in 2004 under White House pressure and his replacement as head of the powerful Office of Legal Counsel, Steven Bradbury, reasserted Bush’s sweeping powers in May 2005. Bradbury reissued some of the OLC’s opinions from 2002 and 2003 that argued that Bush’s Commander-in-Chief authority permitted him to override laws in the name of national security.
In the first months of the Obama administration, release of the interrogation memos has been the subject of a fierce bureaucratic battle, with former CIA Director Michael Hayden reportedly incensed over their possible disclosure and Attorney General Eric Holder arguing for their declassification.
The Justice Department’s request for the deadline extension – and its willingness to include the so-called “torture memo” in the package – suggest that President Barack Obama has sided with Holder in the dispute and that the extra time is needed for final clearances.
In a two-page letter to the New York federal court that is hearing the ACLU’s lawsuit, acting U.S. Attorney Dassin wrote, “Plaintiffs have informed the Government that they consent to this extension based on Government’s representation that high-level Government officials will consider for possible release the three Office of Legal Counsel memoranda ... and an August 1, 2002 OLC memorandum.”
Dassin's letter added, “The Government has further represented that any release of information from these documents will take place on or before April 16, 2009.”
The Aug. 1, 2002, memo, written by John Yoo, then a deputy assistant attorney general at the OLC, was “one of the cornerstones of the CIA’s torture program,” the ACLU’s Jaffer said.
“Collectively, these memos supplied the framework for an interrogation program that permitted the most barbaric forms of abuse, violated domestic and international law, alienated America's allies and yielded information that was both unreliable and unusable in court,” Jaffer added.
“While we are disappointed that the Bradbury memos were not released today, we are optimistic that the extension will result in the release of information that would not otherwise have been available to the public.”
Yoo worked closely with Bush's White House in developing the legal arguments to enable Bush to essentially operate beyond the law. Jay Bybee, who was Yoo’s boss at the OLC and is now a 9th Circuit Appeals Court Judge, signed Yoo’s August 2002 memo. The OLC is the agency that advises Presidents on the extent of their constitutional powers.
Another Aug. 1, 2002 memo, written by Yoo and signed by Bybee, described specific interrogation methods — such as the drowning technique known as waterboarding — which CIA interrogators could use to extract information from detainees.
Jack Goldsmith, who succeeded Bybee as OLC chief in October 2003, determined that the Aug. 1, 2002, memo was “sloppily written” and “legally flawed.” His decision to withdraw the memo and other opinions granting Bush expansive powers touched off a nasty fight with Bush’s White House – especially with Vice President Dick Cheney’s legal counsel David Addington – and pushed Goldsmith to resign.
In May 2005, as acting OLC chief, Bradbury reinstated key elements of the memos granting Bush virtually unlimited powers over the detainees, according to a list summarizing the still-secret documents.
The Yoo-Bybee and Bradbury memos also became the subject of a four-year-long internal investigation conducted by the Justice Department’s Office of Professional Responsibility. The probe centered on whether the three lawyers provided the White House with poor legal advice and violated "professional standards" in interpreting the Constitution.
The OPR investigation was completed last December and reportedly was sharply critical of the trio’s legal opinions. However, then-Attorney General Michael Mukasey, his deputy and the OLC – which was still under Bradbury’s command – succeeded in getting the report revised, according to a Justice Department letter sent to two U.S. senators last week.
The OPR’s report may undergo further changes based on responses from the subjects of the inquiry, the letter indicated.
Two weeks ago, the ACLU called on Holder to appoint a special prosecutor to launch a probe into the Bush administration's torture practices.
Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.
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This story was published on April 3, 2009.