President Obama's wise decision on dealing with the legacy of torture

Friday, April 17, 2009

THE OBAMA administration acted courageously and wisely yesterday with its dual actions on interrogation policy. The pair of decisions -- one essentially forgiving government agents who may have committed heinous acts they were told were legal, the other signaling that such acts must never again be condoned by the United States -- struck exactly the right balance.

The administration announced that it would not seek to press criminal charges against CIA operatives who participated in enhanced interrogations of terrorism suspects during the Bush administration. "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Attorney General Eric H. Holder Jr. said in a statement.

At the same time, the Justice Department released and repudiated four more Bush-era memos from the Office of Legal Counsel that provided the legal justification for such extreme interrogations. An Aug. 1, 2002, OLC memo endorsed the legality of 10 techniques the CIA considered for use against al-Qaeda leader Abu Zubaida. Some techniques were mild, such as holding the detainee's face or grasping him by the lapels to grab his attention. Others were despicable, such as waterboarding, in which water is poured over a prisoner's cloth-covered face to simulate drowning, or sleep deprivation for up to 11 days. Eleven days! A May 10, 2005, memo gave the legal thumbs up to confining a detainee in a cramped, dark box for up to eight hours at a time and up to 18 hours a day. Some techniques were simply bizarre, such as placing a caterpillar into a confined box holding Mr. Zubaida -- who was believed to be afraid of insects -- as long as the insect did not sting and Mr. Zubaida was not led to believe that it was capable of stinging.

By repudiating the memos, the Obama administration has again seized the high ground and restored some of the honor lost over the past few years. President Obama's actions not only restore confidence that this country will not torture, but he has also strengthened the nation's moral authority in condemning these heinous acts wherever they occur.

Yet the decision to forgo prosecutions should not prevent -- and perhaps should even encourage -- further investigation about the circumstances that gave rise to torture. What has become clear as more of the so-called torture memos are released is that common sense and established legal doctrine were often contorted to justify abhorrent techniques. An OLC memo dated May 30, 2005, and released yesterday reveals that at that time, the CIA had custody of 94 detainees and had used a variety of enhanced interrogation techniques against 28. All the techniques were deemed legal as long as they did not inflict prolonged or severe physical or mental pain. More light needs to be shed on how decisions were made and why. And more information is needed on who in the Bush administration made the ultimate decision to authorize the use of techniques that have long been considered torture and a violation of domestic and international legal strictures. A commission like the one that investigated the Sept. 11, 2001, terrorist attacks would likely provide the best vehicle for such an exploration.

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