Coming Clean on Torture

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Monday, May 5, 2008

THE BUSH administration took a positive step last week by announcing that it would make available to certain lawmakers memos and correspondence that lay out the legal underpinnings of the CIA interrogation program involving terrorism suspects.

The White House has jealously -- and unjustifiably -- guarded these documents for years, arguing that they were covered by executive privilege and not subject to disclosure; it claimed that public release would tip off enemies to sensitive national security information. In compromising with lawmakers, the administration has made a gingerly move toward comity and accountability.

It now becomes incumbent upon lawmakers to communicate clearly to the administration any concerns involving the program or its legal foundation. One matter on which they should vigorously press: the long-running effort to circumvent the domestic anti-torture statute and the international Convention Against Torture. In recently released letters between Sen. Ron Wyden (D-Ore.) and the Justice Department's Office of Legal Counsel (OLC), the administration continues to argue that U.S. law may allow the use of harsh interrogation techniques, depending on circumstances. This approach makes the anti-torture prohibitions meaningless and gives interrogators perverse incentives to torture in a broad array of circumstances.

If a terrorist plot is averted through the use of harsh techniques, those who sanctioned or carried out the interrogation must nevertheless be held accountable and at the very least required to explain their decisions. The acts may be understandable and at times even forgivable, but they can never be understood from the outset to be legally sacrosanct.

Lawmakers should also continue to question whether some or all of the OLC documents could be made public. Several documents once kept strictly under wraps, including the now discredited memos written by former OLC lawyer John C. Yoo, have been publicly released with no discernible disastrous results for national security.


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