The Bush administration’s Torture 13. They authorized it, they decided how to implement it, and they crafted the legal fig leaf to justify it.
By Marcy Wheeler
On April 16, the Obama administration released four memos that were used to authorize torture in interrogations during the Bush administration. When President Obama released the memos, he said, “It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”
Yet 13 key people in the Bush administration cannot claim they relied on the memos from the DOJ’s Office of Legal Counsel. Some of the 13 manipulated the federal bureaucracy and the legal process to “preauthorize” torture in the days after 9/11. Others helped implement torture, and still others helped write the memos that provided the Bush administration with a legal fig leaf after torture had already begun.
The Torture 13 exploited the federal bureaucracy to establish a torture regime in two ways. First, they based the enhanced interrogation techniques on techniques used in the U.S. military’s Survival, Evasion, Resistance and Escape (SERE) program. The program — which subjects volunteers from the armed services to simulated hostile capture situations — trains servicemen and -women to withstand coercion well enough to avoid making false confessions if captured. Two retired SERE psychologists contracted with the government to “reverse-engineer” these techniques to use in detainee interrogations.
The torture 13 also abused the legal review process in the Department of Justice in order to provide permission for torture. The DOJ’s Office of Legal Counsel (OLC) played a crucial role. OLC provides interpretations on how laws apply to the executive branch. On issues where the law is unclear, like national security, OLC opinions can set the boundary for “legal” activity for executive branch employees.
As Jack Goldsmith, OLC head from 2003 to 2004, explains it, “One consequence of [OLC’s] power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes.”
OLC has the power, Goldsmith continues, to dispense “get-out-of-jail-free cards.” The Torture 13 exploited this power by collaborating on a series of OLC opinions that repeatedly gave U.S. officials such a “get-out-of-jail-free card” for torturing.
Between 9/11 and the end of 2002, the Torture 13 decided to torture, then reverse-engineered the techniques, and then crafted the legal cover. Here’s who they are and what they did:
1. Dick Cheney, vice president (2001-2009)
On the morning of 9/11, after the evacuation of the White House, Dick Cheney summoned his legal counsel, David Addington, to return to work. The two had worked together for years. In the 1980s, when Cheney was a congressman from Wyoming and Addington a staff attorney to another congressman, Cheney and Addington argued that in Iran-Contra, the president could ignore congressional guidance on foreign policy matters. Between 1989 and 1992, when Dick Cheney was the elder George Bush’s secretary of defense, Addington served as his counsel. He and Cheney saved the only known copies of abusive interrogation technique manuals taught at the School of the Americas. Now, on the morning of 9/11, they worked together to plot an expansive grab of executive power that they claimed was the correct response to the terrorist threat.
Within two weeks, they had gotten a memo asserting almost unlimited power for the president as “the sole organ of the Nation in its foreign relations,” to respond to the terrorist attacks. As part of that expansive view of executive power, Cheney and Addington would argue that domestic and international laws prohibiting torture and abuse could not prevent the president from authorizing harsh treatment of detainees in the war against terror.