Is it possible that the American people – and the world – are finally about to learn how George W. Bush decided that waterboarding and other “enhanced interrogation techniques” were “legal”?
Well, we probably shouldn’t get carried away by the notion of some epiphany that turned American history’s most secretive administration into some kind of paragon of transparency.
It’s probably more likely that government officials are finally being forced to respond to the seven-year drip-drip-drip of the Chinese water torture practiced by legal scholars and human rights advocates.
As Richard Nixon learned the hard way in 1974, stonewalling goes just so far.
Still, it’s worth pondering the remarkable events of the past few weeks. Two weeks ago, CIA director Gen. Michael V. Hayden publicly admitted for the first time that the agency used waterboarding in 2002 and 2003 in the interrogation of three Al Qaeda suspects. The technique, which has been used since the Spanish Inquisition and has been found illegal in the past by American courts, involves pouring water into the nose and mouth to create a feeling of drowning.
Then, just last week, the U.S. and British governments revealed that two American "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002.
Both governments had repeatedly denied that the CIA had ever used British airspace or territory for the secret flights. Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials.
Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
CIA Director Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists to countries whose security services are known to practice torture.
Now we learn that the Justice Department’s internal ethics office is investigating the department’s legal approval for waterboarding of al-Qaeda suspects by the CIA. That disclosure came from H. Marshall Jarrett, the head of the department’s Office of Professional Responsibility. It was the first official acknowledgment that the Justice Department was conducting an internal review of the so-called “torture memos” the department prepared since 2002, authorizing waterboarding and other harsh interrogation methods.
This is no small deal. Jarrett’s report could become the first public accounting for legal advice that endorsed methods that human rights groups and constitutional authorities unreservedly define as torture. Jarrett’s office has the power to refer matters for criminal prosecution or to reprimand or pursue disbarment of current or former Justice Department lawyers. The lawyers who gave the torture-is-OK advice are the precise targets of Jarrett’s review.
The Jarrett’s bombshell came as prosecutors and FBI agents continued their criminal investigation into the CIA’s 2005 destruction of videotapes of some of its interrogations. It also came just a week after President Bush threatened to veto a Congress-passed ban on such interrogations.
Jarett’s disclosure came in response to a letter from two Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island. The Senators wrote, “Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal, certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”
Jarrett responded that he was looking into the basis for the legal advice contained in an August 2002 memo approving waterboarding. That memo -- drafted by Justice Department lawyer John Yoo and signed by Jay S. Bybee, then head of OLC -- concluded that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. It was withdrawn in 2004.
Jarrett went still further. He said the investigation was also examining other legal memoranda prepared by OLC since 2002. Presumably, those would the opinions written in 2005 by Steven G. Bradbury, who is still the acting head of OLC. That memo reportedly gave legal approval for waterboarding and other tough methods. Congress has been trying for many months to see that memo.