Dan Froomkin rounds-up several pieces, but Georgetown law professor David Cole provides one of the best early responses:
A child would recognize these tactics as cruel and inhumane. The United States itself treated waterboarding as torture when the Japanese used it against our troops in World War II. Yet through pages and pages of dense legal reasoning, the Office of Legal Counsel lawyers somehow reach the conclusion that these tactics, even when employed in combination and over a 30-day period, are not torture, and not even cruel, inhuman, or degrading.
President Obama should be commended for releasing these memos. But his simultaneous assertion that he will not seek to hold accountable those responsible for the wrongs so evident on the memos’ face is unacceptable. The line C.I.A. agents are not, however, the most culpable. Rather, it is the lawyers and high-level government officials who set this scheme in motion and made it possible. These documents are irrefutable evidence that government officials, including lawyers employed in the Office of Legal Counsel, a Justice Department office meant to serve as the “constitutional conscience” of the Executive Branch, set out to manipulate the law to reach repugnant, illegal results that contravene the very ideals President Obama says must not be sacrificed.
It is not enough to say that when we have a president who does not believe in cruel and inhuman treatment and torture, the United States will not engage in such practices – while leaving open the possibility that if we again elect a president who does believe in such practices, they can be revived as a policy option. We must formally acknowledge that what was done was wrong, indeed criminal. At the very least, a credible independent investigation must be undertaken. The Convention Against Torture, which we have signed and ratified, demands nothing less wherever there is any evidence that persons within our jurisdiction inflicted cruel, inhuman, or degrading treatment on another human being. These memos are that evidence.
Cole provides the human, just perspective.
Next up is John Hinderaker of Powerline. Not long ago, we looked at Hinderaker's torture apologia, claiming that waterbaording was not torture, all captured by Andrew Sullivan in "From the Pro-Torture Cocoon". Hinderaker outdoes himself here, however (my emphasis):
The Obama administration has made public four memos that were authored by the Justice Department between 2002 and 2005, in which lawyers from DOJ's Office of Legal Counsel responded to requests by the CIA for legal opinions as to whether harsh interrogation techniques, including waterboarding, could legally be used on a few high-level al Qaeda detainees. DOJ concluded, among other things, that the use of such techniques would not violate the statute that prohibits torture.
You can read the memos here. If you do, you will see that DOJ's lawyers grappled carefully and fairly with issues that are, by their nature, both difficult and distasteful. I find much to agree with in the memos and little, if anything, with which I disagree from a legal standpoint. Several things about the memos are striking: the concern that is shown for the health and well-being of the detainees; the very limited circumstances under harsh interrogation techniques were used (only when the CIA had reason to believe that the detainee had knowledge about pending terrorist attacks, among other limitations), and confirmation of the fact that thousands of American servicemen have been waterboarded and subjected to the other techniques in question, as part of their training --a practice that continued at least up to the dates of the memos.
I think the opinions were correct in substance; in any event, CIA officials were obviously justified in relying on them. In this context, the Obama administration's announcement that it will not prosecute the CIA personnel involved is evidently grandstanding. Of course they won't be prosecuted: to do so would be a double-cross of the worst sort, and the likelihood of getting a conviction would be nil. The fact is that the CIA officials who extracted valuable information from captured al Qaeda leaders--information that we have every reason to believe prevented successful terrorist attacks--are heroes. Their task was a thankless one, but, based on all the information we have, including the newly-released DOJ memos, they performed it well.
Judging from Hinderaker's previous, worshipful pieces on George W. Bush, I'm guessing some of this drivel is delusional authoritarianism, although that doesn't preclude disingenuousness as well. In previous posts (most recently, the Rivkin one), we've demolished the gossamer substance of all of Hinderaker's arguments. SERE training is not the same as torture. Waterboarding is torture. The Bush administration authorized and committed torture. The Red Cross report is clear on this, and the memos solidify the administration's role. Furthermore, there is no proof of actionable intelligence gained through this torture, and plenty of evidence pointing to the opposite. Hinderaker is definitely a hack, but I believe he's truly delusional, too.
Finally, let us check in with one of the most skilled and vigorous of torture apologists, David Rivkin, who writes (my emphasis):
No Harm, No Torture
The release of these memos comes at a high price. By describing in great detail the most assertive set of interrogation techniques, that the United States has ever used — having determined them after a great deal of reflection and analysis to be legal — we have rendered them essentially unusable in the future. This is precisely because these techniques were not torture, did not feature brute force and worked primarily because of their psychological dimension. Now, having been exposed, these techniques would be studied by our enemies, who will then train their operatives to withstand them.
However, while this disclosure came at a great price, it also provides a great benefit. The memos are well-written, and feature careful and nuanced legal analysis. They weave together the facts and the law. They are grounded in real world experience, because nine out of 10 techniques, used against high-value detainees, were also used over a period of many years in SERE training courses, with thousands and thousands of American participants.
This data is analyzed in great detail to establish that the use of these techniques does not inflict either physical or psychological damage. The conclusions the memos reach — that the specific interrogation techniques used by the C.I.A. did not constitute torture — are eminently reasonable. To any fair-minded observer, these documents definitively establish that the Bush administration did not engage in torture. They go a long way toward rebutting shrill and unfair attacks on the integrity of Bush administration officials, and, more generally, on America’s honor.
The earlier post on Rivkin (linked above) debunks all of his claims except the new set here, in his analysis of the memos - he claims no fewer than three times that these techniques were not torture. (He's made that claim before, but not in relation to these specific memos.) Rivkin may believe some of what he says, but I believe he's too intelligent for that. He's again playing defense attorney here, lying to protect his clients, attacking the central charge – because every "fair-minded observer" knows this is torture. Indeed, some torture apologists admit it, but try to argue – falsely – that the torture was justified and effective at producing accurate, actionable intelligence. It's a standard defense for war criminals, but Rivkin is setting up his rampart further ahead. It's also interesting to see Rivkin's back to arguing that waterboarding is torture, after briefly admitting it was, and long insisting it wasn't.
David Cole represents the moral, human response to these atrocities. Jay Bybee and his colleagues represent the banality of evil. John Hinderaker represents the delusion of evil. And David Rivkin represents the audacity of evil. He has to know that this was torture, both illegal and immoral, but he doesn't care, and is eager to lie to the public to prevent justice.
I'll add that I'm rather sick of pundits complaining about "anger" and "retribution." The United States lead at Nuremberg in prosecuting war crimes. If you're not angry about the U.S. committing war crimes under the Bush administration, you're not paying attention - or you're a shill like Hinderaker and Rivkin. "Retribution" is properly the province of those directly harmed by these abuses. But they can join the rest of us in seeking justice.
Rivkin's welcome to offer his conscienceless, immoral, counterfactual bullshit in court, and I hope he gets the chance, because he's trying to forestall any sort of trial or official investigation. Let Rivkin, Bybee, Yoo and the lot make their statements under oath and under cross-examination. Surely, since they can prove their righteousness, they would welcome the vindication. Surely they would yearn to prove they are "heroes" and not war criminals or apologists for the same.
Here are petitions to impeach Jay Bybee and for AG Eric Holder to appoint a special prosecutor. Earthly justice would make a nice change of pace, wouldn't it?
(Cross-posted at Blue Herald)
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