We must ban secretive U.S. torture

Why the White House should turn over secret legal memos, and why I'm sponsoring legislation to end brutal interrogations.

Published October 10, 2007 11:07AM (EDT)

Last Thursday's New York Times alerted the nation to yet another shocking fact about the Bush administration: The Department of Justice authorized the use of extreme interrogation techniques not only in 2002 and 2003, but also two more times in 2005. The Justice Department's record is even worse than we'd realized. It's up to Congress to act against torture because this administration can't be trusted to do so.

We've been here before. Before this latest scandal, we already knew about an earlier opinion by the department's Office of Legal Counsel authorizing the use of torture -- the Bybee torture memo. When it came to light along with the shocking photos from Abu Ghraib, it shamed America in the eyes of the world. We lost our moral high ground in the battle against terrorism. This memo and others like it violated the values we hold dear, undermined our intelligence gathering, encouraged our enemies to respond in kind, and made the war on terrorism harder to win.

The torture memo was wrong morally, and it was wrong legally. The Office of Legal Counsel had to withdraw it in 2004 because it was so deeply flawed. As far as we know, this was the first time that an OLC opinion had ever been overturned in the same administration.

That disgraceful episode apparently did not end when the memo was withdrawn. At the very time the Department of Justice was publicly claiming it had put things right, the Office of Legal Counsel was secretly issuing two new opinions under Attorney General Alberto Gonzales.

The first opinion authorized harsh interrogation techniques to be used "in combination" to create a more extreme overall effect. For instance, interrogators could withhold food and sleep while bombarding detainees with loud music or subjecting them to freezing temperatures.

The second opinion declared that none of the CIA's interrogation methods violated the ban on "cruel, inhuman, and degrading" treatment that Congress was about to pass. At the time, the CIA was using "waterboarding" and other abhorrent techniques copied from the Soviet Union and other brutal regimes.

How did the Justice Department go from secretly authorizing brutal interrogation techniques in 2002 and 2003, to withdrawing a significant part of that authorization in 2004, to once again secretly authorizing such techniques in 2005?

The answer, we now know, is that the White House overruled all those troublesome officials who told them what they didn't want to hear -- that torture is wrong and illegal.

The Deputy Attorney General, James Comey, told his colleagues at the Justice Department that they would all be "ashamed" when the world learned of these opinions, but he was sidelined by the White House. The head of the department's Office of Legal Counsel, Jack Goldsmith, met the same fate. These were conservative Republicans who were also loyal patriots trying to uphold the rule of law.

Last week's new revelations give even greater urgency to the need for congressional action, on two fronts.

First, Congress must be allowed to review the secret OLC opinions that provided legal cover for the administration's detention and interrogation policies. We have been asking for these documents for years, but the White House refuses to turn them over. They simply say, "We don't torture under the law. But we won't tell you what we think torture is, and we won't tell you what we think the law is." Such stonewalling is unacceptable in a democracy, especially from an administration that has done absolutely nothing to earn our trust.

In an effort to subdue its critics, the White House publicly released the 2004 OLC opinion that replaced the Bybee memo. It has failed to explain why that legal opinion could be released while these new opinions must remain secret, even from congressional leaders who could review them in a classified setting if necessary.

Second, and more fundamentally, Congress must strengthen the ban on torture. I'm sponsoring a bill in the Senate to do just that: the Torture Prevention and Effective Interrogation Act.

When Congress passed the Detainee Treatment Act in 2005, we required all Department of Defense interrogations to comply with the Army Field Manual, the "gold standard" for responsible and effective interrogation techniques. But as this latest scandal and a recent executive order show, it's the CIA that we have to worry about now.

The legislation I'm sponsoring will close the loophole left open by the Detainee Treatment Act by applying the standards of the Army Field Manual to all U.S. government interrogations, not just Department of Defense interrogations. This basic reform will ensure that our government honors its commitment to the basic rights enshrined in the Geneva Conventions, which protect the values we cherish as a free society and the lives of our servicemen and women overseas.

This nation's military and intelligence leaders have repeatedly warned that brutal interrogation methods are not only illegal and immoral, but also ineffective. There is no quick-and-dirty solution to the hard work of intelligence gathering and interrogation, and America should not sacrifice its principles in the false hope of finding one.

Congress should pass the Torture Prevention and Effective Interrogation Act immediately, leaving the White House with no doubt that torture is always and everywhere unacceptable.

By Sen. Edward M. Kennedy

Related Topics ------------------------------------------

Abu Ghraib Cia Guantanamo Terrorism Torture