The Obama administration has made public four memos that were authored by the Justice Department between 2002 and 2005, in which lawyers from DOJ’s Office of Legal Counsel responded to requests by the CIA for legal opinions as to whether harsh interrogation techniques, including waterboarding, could legally be used on a few high-level al Qaeda detainees. DOJ concluded, among other things, that the use of such techniques would not violate the statute that prohibits torture.
You can read the memos here. If you do, you will see that DOJ’s lawyers grappled carefully and fairly with issues that are, by their nature, both difficult and distasteful. I find much to agree with in the memos and little, if anything, with which I disagree from a legal standpoint. Several things about the memos are striking: the concern that is shown for the health and well-being of the detainees; the very limited circumstances under harsh interrogation techniques were used (only when the CIA had reason to believe that the detainee had knowledge about pending terrorist attacks, among other limitations), and confirmation of the fact that thousands of American servicemen have been waterboarded and subjected to the other techniques in question, as part of their training–a practice that continued at least up to the dates of the memos.
I think the opinions were correct in substance; in any event, CIA officials were obviously justified in relying on them. In this context, the Obama administration’s announcement that it will not prosecute the CIA personnel involved is evidently grandstanding. Of course they won’t be prosecuted: to do so would be a double-cross of the worst sort, and the likelihood of getting a conviction would be nil. The fact is that the CIA officials who extracted valuable information from captured al Qaeda leaders–information that we have every reason to believe prevented successful terrorist attacks–are heroes. Their task was a thankless one, but, based on all the information we have, including the newly-released DOJ memos, they performed it well.