The Ethics of Interrogation: Professional Responsibility in an Age of Terror

Chapter Three: Interrogating Justice: The Torture Memos and the Office of Legal Counsel

Three Interrogating Justice The Torture Memos and the Office of Legal Counsel Torture is rarely solo work. It is a systematic practice, institutionalized by nations and states, supported hierarchically, and requiring the participation of professionals of many stripes. —Nancy Sherman, The Untold War, 147 In the first two chapters, we saw how professionals in the field of psychology became involved in interrogations of detainees in the war on terror that arguably amounted to torture. Some psychologists facilitated abusive practices, but others sought to end any support for (or participation in) abusive interrogations. In some cases, the very same psychologists who facilitated abuse also belatedly sought to curtail it. Yet, as Nancy Sherman rightly notes, torture and abuse are the end points of an interlocking set of activities, which typically involve professionals of many stripes. Our discussion of the role of psychologists thus needs to be supplemented by a consideration of the activities of other professionals in the war on terror. And few can deny the profound role that attorneys have played in this war. The Office of Legal Counsel Given that our focus is on the use of coercive interrogations in the war on terror, the natural starting point for our discussion is the so-called torture memos and the work of the attorneys who produced them.1 Most references to “the torture memos” are restricted to three memoranda produced by the Office of Legal Counsel (OLC) at the DOJ—the unclassified Bybee memorandum, the classified Bybee memorandum, 68 Chapter Three and the Yoo memorandum—and these three memoranda will be the focus of much our discussion below. Nevertheless, it is important to note that there are at least eight memoranda, produced under three different directors of the OLC, that address the issue of interrogation techniques, and we will need to examine some of the other memoranda as well. Three additional memoranda are particularly important. The memorandum issued by Daniel Levin, acting assistant attorney general, in December 2004 is significant because it explicitly repudiates the reasoning but not the conclusions of the unclassified Bybee memorandum. Similarly, two memoranda issued by Steven Bradbury, principal deputy assistant attorney general, in May 2005, known as the “Techniques” and “Combined Techniques” memoranda, merit attention.2 To gain a sense of the role the interrogation memoranda played in abusive interrogations, it is necessary to understand the function of the OLC. The OLC provides legal advice to the executive branch of the government, including the president, and OLC opinions are binding on the executive branch. The OLC website provides a very clear description of the office’s responsibilities: The Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department . . . . The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality. All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President’s formal approval.3 Because the OLC is effectively the unit within the federal government to which executive-branch agencies turn when novel legal questions arise, it is not surprising that it fell to the OLC to determine the legality of various interrogation techniques that federal counterterrorism units considered using in the aftermath of the attacks of September Interrogating Justice 69 11, 2001. The immediate occasion of the interrogation memos was a request from John Bellinger III, the legal adviser to the National Security Council, to the OLC seeking clarification about what techniques the CIA could legally use in interrogating suspected terrorists captured in Afghanistan and elsewhere. Specifically, the CIA sought clarification about twelve techniques that it considered using on captured al-Qaeda member Abu Zubaydah.4 Work on the questions raised by the CIA is found in OLC log sheets as early as April 2002, and John Rizzo, the acting general counsel for the CIA at the time, is listed as the client. As OLC lawyers began to work on the questions raised by the National Security Council, the CIA, and the White House counsel, drafts of two different memoranda...