Lessons from the Justice Department's report on the interrogation memos

By R. Jeffrey Smith
Sunday, February 28, 2010

"Do we know if Boo Boo is allergic to certain insects?"

In mid-2002, Justice Department lawyer John Yoo posed this question to a fellow attorney about newly captured al-Qaeda operative Zayn al-Abidin Muhammed Hussein, better known by his nom de guerre, Abu Zubaida. It was one of many odd moments in secret deliberations by the government's top lawyers over how far CIA interrogators could go in pressing captives for information that they hoped would save lives.

The fruits of that dialogue were, in part, the two notorious 2002 Office of Legal Counsel memos justifying waterboarding, wall slamming, extended sleep deprivation, the use of insects and similar interrogation methods. Career Justice Department lawyer David Margolis recently described those documents as "an unfortunate chapter in the history" of that office.

The memos -- one of which Yoo internally called his "bad things opinion" -- were treated as soothing gospel by many of the attorneys privy to the CIA program. But after their public disclosure in 2004, they were rewritten by new Bush administration appointees.

The aftermath is well known: The CIA collected some useful information while conducting interrogations that Director of National Intelligence Dennis Blair last year called "graphic and disturbing." FBI Director Robert Mueller barred his agents from participating, and Army Gen. David Petraeus denounced such "expedient methods" as "nonbiodegradable. . . . The enemy continues to beat you with them like a stick."

Margolis and several of those interviewed in an internal probe by the Justice Department's Office of Professional Responsibility (OPR) -- released Feb. 19 -- attributed some of the legal mistakes to the unsettled meaning of underlying laws and to urgent pressures caused by the 2001 terrorist attacks. "Everyone was freaked out," said Patrick F. Philbin, then a deputy assistant attorney general and one of the lawyers who approved the memos before they were sent to the CIA.

New crises will undoubtedly arise to test the wisdom of government officials in novel ways. And although the results of Justice's nearly five-year investigation have been controversial, a few lessons emerge from the OPR's 650-plus pages of contentious argument, illustrating how officials can avoid heading down legal and bureaucratic paths that much of the executive branch, Congress and the public would later regret.

Don't claim certainty when confronting complex dilemmas for the first time.

One of the 2002 memos examined an Israeli court ruling that found five interrogation methods illegal. "Isn't there some language in the opinion that we can characterize as showing that the court did not think the conduct amounted to torture?" Yoo asked a colleague about the judgment. The colleague responded, "Unfortunately, no." But the memo said nonetheless that the ruling was "best read" as if the methods did not amount to torture, a conclusion that the OPR and Margolis later judged "misleading" or "flawed."

Steven G. Bradbury, who later became principal deputy and acting head of the legal counsel's office at the Justice Department, told OPR investigators that "somebody should have exercised some adult leadership" in drafting the memo. Michael Mukasey, the attorney general in 2007 and 2008, told the OPR that the memo was a "slovenly mistake," though not one that warranted a finding of professional misconduct.

Margolis concluded that Yoo's memo lacked appropriate nuance, overstated "the certainty of its conclusion" and failed to "expose (much less refute) countervailing arguments." The OPR report also noted that those in the legal counsel's office relied on the CIA's broad descriptions of the proposed methods, and never sought a precise account of how the prisoners were to be kept awake or forced to maintain "stress positions."

Yoo defends his work but told investigators that when judging the relevance of prior rulings, he "looked at the cases quickly," and he conceded that one of the key conclusions was "just not clear," according to the OPR report.

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