A Day Late And More Than A Dollar Short: The Torture Memo Inquiry

The New York Times today reports that Justice Department is going to investigate the Justice Department’s approval of the CIA’s use of waterboarding torture:

The Justice Department revealed Friday that its internal ethics office was investigating the department’s legal approval for waterboarding of Qaeda suspects by the Central Intelligence Agency and was likely to make public an unclassified version of its report.

The disclosure by H. Marshall Jarrett, the head of the department’s Office of Professional Responsibility, was the first official acknowledgment of an internal review of the legal memorandums the department has issued since 2002 that authorized waterboarding and other harsh interrogation methods.

Mr. Jarrett’s report could become the first public accounting for legal advice that endorsed methods widely denounced as torture by human rights groups and legal authorities. His office can refer matters for criminal prosecution; legal experts said the most likely outcome was a public critique of the legal opinions on interrogation, noting that Mr. Jarrett had the power to reprimand or to seek the disbarment of current or former Justice Department lawyers.

You’ll pardon me, please, for not dancing in the streets.  “Waterboarding” shouldn’t be the focus of the inquiry.  The focus should be on torture in all of its forms and in all of the locations where it might be practiced (including Gitmo, Black Sites, Diego Garcia) and all of the agencies of the Governmetn and their contractors who might be using it.  And we don’t really need an “unclassified version of a report” about how torture was approved.  We need an end to torture. Period.  And we need criminal prosecution of all of those who approved it.

Some context, if you will:

*C.I.A. director Michael V. Hayden admitted a couple of weeks ago that the CIA used waterboarding in 2002 and 2003 on 3 prisoners but claimed that the CIA didn’t do that any more and that the legality of what it did was “uncertain.”

*Attorney General Mukasey refused to launch a criminal investigation of those who used torture waterboarding or of their superiors, because CIA employees couldn’t be prosecuted for things Justice had told them were legal.  Jarrett’s review focuses on the government lawyers who gave that advice.

*According to the Times, prosecutors and F.B.I. agents have launched a criminal investigation of the C.I.A.’s destruction in 2005 of videotapes of harsh interrogations torture and a week after Congress passed a ban on coercive interrogations, which President Bush has said he will veto.

According to the Times:

In a letter to two Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, Mr. Jarrett wrote that the legal advice approving waterboarding was one subject of an investigation into “the circumstances surrounding the drafting” of a Justice legal memorandum dated Aug. 1, 2002.

The document declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. The memorandum, drafted by a Justice Department lawyer, John Yoo, and signed by Jay S. Bybee, then head of the department’s Office of Legal Counsel, was withdrawn in 2004.

Mr. Jarrett said the investigation was also covering “related” legal memorandums prepared by the Office of Legal Counsel since 2002. That suggested the investigation would address still-secret legal opinions written in 2005 by Steven G. Bradbury, then and now the acting head of the Office of Legal Counsel, that gave legal approval for waterboarding and other tough methods, even when used in combination.

We know about the Yoo and Bybee memoranda and how they were altered in 2004.  We know about the Bradbury opinions.  Doubtless there are others as well. Don’t we know that those reached barbaric, incorrect conclusions about the legality of torture?

Mr. Jarrett said his office was “examining whether the legal advice in these memoranda was consistent with the professional standards that apply to Department of Justice attorneys.”

Doh.  We don’t need a further, public investigation of these opinions that might endanger prosecution of these individuals.  We need to prosecute them.  The public investigation is a day late and more than a dollar short.


  1. restoring human rights, closing Gitmo, restoring habeas corpus, repealing the MCA of 2006.

    I am so very cranky this morning.  I hope you’re not.

    Thanks for reading.

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