There are no excuses for ongoing concealment of torture memos

New claims from the Obama DOJ about why key OLC memos remain concealed are irrelevant even if true.

Published April 6, 2009 12:42PM (EDT)

Ever since October, 2007, the ACLU has been battling in court to compel the disclosure of three key torture-authorizing memos authored by Bush's Office of Legal Counsel chief Steven Bradbury and approved by Attorney General Alberto Gonzales in 2005.  Two of those memos -- the existence of which was first disclosed in a well-documented October, 2007 article by The New York Times' Scott Shane, David Johnston and James Risen -- are among the clearest, most specific and most vivid exhibits detailing how the U.S. Government formally "legalized" interrogation methods which unquestionably constitute torture.  They are, in essence, the Rosetta Stone for documenting the war crimes committed not by low-level CIA agents but by the highest-level Bush DOJ officials.  For that reason, the Bush administration vigorously resisted the ACLU's campaign of compelled disclosure.

Those are the torture memos that are now at the heart of a growing controversy, as the Obama administration has sought multiple delays (a total of four) of the court-imposed deadline for it either to (a) disclose those memos to the ACLU or (b) declare that it will refuse to do so and explain why.  The last deadline was Thursday, April 2, and on that date, the Obama DOJ obtained yet another extension, making the new deadline April 16.  Two weeks ago, Newsweek's Michael Isikoff reported that Eric Holder and White House counsel Gregory Craig had overruled the vehement objections from ex-CIA Director Michael Hayden and others in the intelligence community and had decided to disclose the memos.  But thereafter, the Obama DOJ, rather than release the memos, instead sought another extension of the deadline, and numerous sources -- including The New York Times' Shane, Newsweek's Isikoff, and Harper's Scott Horton -- then reported that the anti-disclosure crusade inside the Obama administration is being led by John Brennan.  

Brennan, of course, was a former top aide to CIA Director George Tenet and was Obama's first choice to head the CIA, a prospective nomination supposedly blocked by bloggers and others, who objected to Brennan on the ground that, though he condemned waterboarding, he had explicitly defended many of the "enhanced interrogation tactics" that these memos authorized.  Despite Brennan's defense of many radical Bush/Cheney policies (or perhaps because of it), Obama named Brennan to be his top White House counter-terrorism adviser, a position Brennan is now using -- quite predictably -- to block disclosure of evidence that incriminates the Bush administration.  Exactly as Brennan critics predicted (and as intelligence reporters far too close to and respectful of their sources denied would happen), Brennan has now become, as Horton put it, "Dick Cheney’s clear champion."

Today, in The Daily Beast, Horton -- citing an anonymous Obama DOJ source and an anonymous Senate GOP source -- claims that Senate Republicans are now "blackmailing" Obama by threatening to filibuster the confirmation of two Obama legal appointees (Dawn Johnsen as head of the OLC and Harold Koh as State Department legal counsel) unless Obama agrees not to release these OLC memos.  The Right has been obstructing the nominations of Johnsen (as a result of her aggressive rhetoric condemning Bush crimes) and Koh (for his advocacy of international law).  Horton's DOJ source says that while it is true that Brennan has been aggressively advocating against disclosure, it is the threatened obstructionism from the Senate GOP that is the "principal" cause of concern inside the White House.

It's unclear whether the claims of Horton's source are true.  It sounds more like a responsibility-shifting excuse than anything else -- a way of blaming Republicans rather than Obama officials for the failure to disclose these memos -- but it doesn't matter in the slightest if the claims are true.  There is absolutely no justification whatsoever to continue to conceal these memos, and the fact that the GOP will stomp its feet and obstruct nominees doesn't come close to constituting an excuse for ongoing concealment. 

I don't personally have any real objection to the Obama administration's desire to have a few additional weeks to try to figure out how to manage these internal controversies and political storms over the memos' release.  Though frustrating, short delays of this type are tolerable, even reasonable.  But ultimately (and sooner rather than later), full disclosure of these documents  -- meaning with nothing other than the most minimal redactions to protect sources and identities of cooperating foreign agencies -- is absolutely necessary.   There is no excuse for any other course of action, and a failure of full disclosure here would almost certainly be the most egregious act taken thus far by the Obama administration (and there have already been several such acts) to help keep concealed compelling evidence of Bush crimes.

Ironically, Dawn Johnsen's most scathing criticism of the Bush administration was its reliance on "secret laws" -- meaning not only its use of OLC memos to legally authorize what is plainly illegal, but worse still, its concealment of those legal decrees:

The Bush Administration's excessive reliance on "secret law" threatens the effective functioning of American democracy, Indiana University Law Professor Dawn E. Johnsen said this week in testimony to a Senate subcommittee.

Johnsen said the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government. . . .

One principle is that the OLC should "publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure." The Bush Administration, [Johnson] said, "has not complied with this public notice standard and has operated in extraordinary secrecy."

Indeed, a December 21, 2004 memo (.pdf) entitled " Principles to Guide the Office of Legal Counsel" -- signed by 19 former OLC lawyers, including Johnsen, Obama's current acting OLC Chief David Barron, and Obama's number 3 OLC official, Marty Lederman -- emphasized that "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure" (i.e., genuine national security secrets); urged that "OLC should follow a presumption in favor of timely publication of its written opinions"; argued that "such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority"; and concluded that "transparency promotes confidence in the lawfulness of government actions."  Presumably, those principles are equally applicable now that Obama, rather than Bush, occupies the Oval Office.

In light of that, it would be perverse in the extreme to keep Bush's "secret laws" concealed and then justify that by claiming it was necessary to enable the confirmation of Johnsen, of all people.  I would hope that, before believing this excuse for non-disclosure, everyone would first demand proof that this claim of GOP threats is true -- namely, I'd like to see evidence that the GOP Senate caucus is really prepared to unify in a filibuster of Obama nominees in order to keep these torture memos concealed.  But even if it is true, it's entirely irrelevant.  Politically, that's a fight the Obama administration -- if it even remotely believes in all the things it has been saying about transparency -- should be prepared to wage.  But beyond the political considerations, the government simply has no right to keep things secret in order to avoid political embarrassment or conflict, and Obama's top OLC officials themselves spent the last five years arguing exactly that.

The only conceivable reason for wanting to keep these memos secret is to avoid the deep and justifiable embarrassment the U.S. will feel upon placing before the world documents that explicitly authorized war crimes at the highest levels of our government, and thereby avoid what will inevitably be the increasing political pressure -- domestic and international -- to investigate and prosecute the war criminals.  Those who authorized these tactics knew full well that what they were doing was wrong.  Here is how the 2007 Times article described the internal disputes over the OLC memos within the Bush administration:

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Comey's remark echoes what John Ashcroft said to Don Rumsfeld, Dick Cheney, Condoleezza Rice, Colin Powell, and George Tenet at the White House Principals Meeting where (with Bush's knowledge and consent) the torture techniques later authorized by the OLC memos were first approved and choreographed:

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques -- using different techniques during interrogations instead of using one method at a time -- on terrorist suspects who proved difficult to break, sources said. . . .

Ashcroft was troubled by the discussions. He agreed with the general policy decision to allow aggressive tactics and had repeatedly advised that they were legal. But he argued that senior White House advisers should not be involved in the grim details of interrogations, sources said.

According to a top official, Ashcroft asked aloud after one meeting: "Why are we talking about this in the White House? History will not judge this kindly."

The Principals also approved interrogations that combined different methods, pushing the limits of international law and even the Justice Department's own legal approval in the 2002 memo, sources told ABC News.

If the Obama administration releases these memos in largely unredacted form, they will deserve credit for doing so.  These memos, which an anonymous Obama official told Newsweek were quite "ugly," are virtually certain to fuel calls for investigations and prosecutions and erase all remaining doubt in the eyes of the world how directly and knowingly involved in the torture regime were our highest government officials.  Disclosure will require a fair amount of political courage, and if they do that, credit ought to be given.

Conversely, a refusal to disclose these memos, or disclosing them with so many redactions as to render them meaningless, will be absolutely inexcusable.  It doesn't matter how loudly John Brennan screams or how many nominations Republican Senators threaten to filibuster.  Put simply, there is no legal authority for these memos to remain secret -- ongoing concealment is itself an act of profound lawlessness -- and, beyond that, keeping them secret will constitute the most extreme complicity yet on the part of the Obama administration in the last administration's war crimes.  It was Obama who chose to place someone like Brennan in a position of high authority in his administration.  That Brennan is now working with Bush-following Republicans to hide evidence of war crimes is, quite obviously, no excuse for continuing to hide it.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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