UPDATE: Here’s a link to the memos (the Times also has them) with three cheers for the FOIA petition from the ACLU. …and on quick inspection of the documents, the redaction rumors are correct, with Obama deserving a lot of credit for allowing the bulk of the information into the light. I said earlier that the burden of proof was on Obama if he decided not to release the OLC memos. Now that he has, with few redactions, credit goes to President Obama. This is definitely change we can believe in.
Congress, you’re up.
UPDATE II: Bybee memo, snippets below. The section in bold refers to waterboarding as not causing “severe suffering” because it is simply a “controlled acute episode.” As you read, one wonders if “threat of imminent death” is the only criteria from which the Bush administration was to judge torture or “severe suffering.” Adding, re: waterboarding (p. 15): “… We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years. … Indeed, you have advised us that the relief is almost immediate when the cloth is removed from the nose and mouth. In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and tbe use of these procedures could not constitute torture within the meaning of the statute. …”
Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently a level of “chatter” equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an “increased pressure phase.”
As part of this increased pressure phase, Zubaydah will have contact only with a new interrogation specialist, which he has not met previously, and the Survival, Evasion, Resistance, Escape (“SERE”) training psychologist who has been involved with the interrogations since they began.
These ten techniques are: (l attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confll1ement box, and (10) the waterboard. You have informed us that the use of these techniques would be on an as-needed basis and that not all of these techniques will necessarily be used. The interrogation team would use these techniques in some combination to convince Zubaydah that the only way he can influence his surrounding environment is through cooperation. You have, however, informed us that you expect these techniques to be used in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique.
(Zubaydah) has maintained this demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Zubaydah showed signs of sympathetic nervous system arousal, which you think was possibly fear. Although this incident led him to disclose intelligence information, he was able to quickly regain his composure, his air of confidence, and his “strong resolve” not to reveal any information. Overall, you summarize his primary strengths as the
As we understand it, when the waterboard is used, the subject’s body responds as if the subject were drowning-even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. As we explained in the Section 2340A Memorandum, “pain and suffering” as used in Section 2340 is best understood as a single concept, not distinct concepts of “pain” as distinguished from “suffering.” See Section 2340A Memorandum at 6 n6. The waterboard, which inflicts no pain Or actual harm whatsoever, does not, in our view inflict “severe pain or suffering.” Even if one were to parse the statute more finely to attempt to treat “suffering” as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.
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The New York Times has a story teasing what to expect, but, frankly, we just don’t know the details, including what will be redacted and what will not be included.
What is of real value is Obama’s statement, which I received and is offered below (emphasis added):
Statement of President Barack Obama on Release of OLC Memos
The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.
My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.
But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.
First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.
In releasing these memos, 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. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.
Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.
The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable (sic) commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.
TO ADD… If you’re not going to go after the cretins who designed torture policy during Bush-Cheney, you can’t justify prosecuting C.I.A. operatives either.
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