Reports of two new “torture memos” underscore the need for the next US attorney general to declassify and repudiate secret government legal opinions that permit abusive interrogations, Human Rights Watch said today.
Attorney General nominee Michael Mukasey, whose confirmation hearings are upcoming, should not be confirmed unless he repudiates legal opinions that justify or defend abusive interrogation or detention techniques, Human Rights Watch said.
According to the New York Times, a still-secret legal opinion issued by the Department of Justice in early 2005 provided explicit authorization to the Central Intelligence Agency (CIA) to subject detained terrorist suspects to a combination of abusive interrogation methods, including simulated drowning (“waterboarding”), head-slapping and frigid temperatures. A subsequent legal opinion, issued just before passage of the McCain amendment barring cruel, inhuman or degrading treatment of detainees, reportedly declared that none of the interrogation methods used by the CIA violated that standard.
“Press accounts indicate these legal memos are part of a concerted effort to immunize US officials from prosecution for abusive conduct,” said Joanne Mariner, Human Rights Watch’s Terrorism and Counterterrorism Director. “Taken together, they’re a paper trail leading to torture.”
The new opinions were reportedly drafted by the Justice Department’s Office of Legal Counsel (OLC), the office charged with providing authoritative legal guidance to other executive branch officials. They were reportedly approved by then-Attorney General Alberto Gonzales.
“By issuing these opinions, the Office of Legal Counsel encouraged torture and abandoned its responsibility to provide accurate and objective guidance on the law,” Mariner said. “Indeed, by trying to give other officials legal cover to commit abuses, former Attorney General Gonzales may himself be part of a criminal enterprise to commit torture.”
A previous opinion issued by the OLC in 2002 – the so-called torture memo – argued that the president was not bound by federal laws prohibiting torture, and that the Department of Justice lacked authority to enforce anti-torture laws against those acting with the president’s authorization. It also provided a narrow and inaccurate interpretation of what techniques constitute torture under US and international law. The OLC eventually rescinded this opinion, but top Justice Department officials have never explicitly repudiated it.
Human Rights Watch challenged the assertion, reportedly made in the first of the two 2005 Justice Department opinions, that the “combined effects” of certain painful interrogation techniques would not constitute torture. Authoritative international human rights bodies such as the Committee Against Torture have found that cruel and inhuman interrogation methods, even those that do not themselves constitute torture, can amount to torture when used cumulatively.
Human Rights Watch also pointed out that “waterboarding,” one of the interrogation methods reportedly defended in the legal opinions, has been prosecuted as torture by US military courts since the Spanish-American War. After World War II, US military commissions prosecuted and severely punished enemy soldiers for having subjected American prisoners to waterboarding, as well as techniques such as sleep deprivation, forced standing, and removal of clothing.
The Judge Advocates General (JAGs) of the US Army, Navy, Air Force and Marines agreed in answers to questions posed by the Senate in August 2006 that the use of “waterboarding” to create the sensation of drowning, of stress positions – in which prisoners are forced to stand, sit or kneel in abnormal positions for prolonged periods of time – as well as the use of dogs and removal of clothing in interrogation, would be inhumane and would violate US law and the laws of war. Several JAGs told Congress that waterboarding would specifically constitute torture under the federal Anti-Torture Statute, making it a felony offense.
In its 2006 Country Reports on Human Rights Practices, the State Department condemned numerous countries, including Iran, North Korea, Tunisia and Libya, for torturing and abusing prisoners through techniques such as sleep deprivation, prolonged solitary confinement with sensory deprivation, long confinement in contorted positions, being forced to kneel or sit immobilized for long periods, hanging detainees by the arms and legs, submersion of the head in water, and threats of dog attacks. The criticized techniques are similar to those known to have been employed by the CIA.
Human Rights Watch said that Congress should not only press Mukasey about his view of the legal opinions, but it should also hold hearings to investigate the responsibility of former Attorney General Gonzales and other administration officials in facilitating detainee abuses.
“Congress should be clear: it will not confirm another Attorney General who advises the president that it is OK to break the law,” Mariner said.
