On torture, administration takes one step forward, one back

The DOJ will release disputed memos about interrogation techniques, but CIA officials won't be prosecuted for waterboarding.

Published April 16, 2009 7:25PM (EDT)

The Obama administration has made today a good news-bad news day for civil libertarians.

On the one hand, the administration has decided to release four controversial memos prepared by the Department of Justice's Office of Legal Counsel during the Bush administration. These memos were drafted in 2002 and 2005, and provide legal justifications for interrogation techniques including torture. The documents had been the subject of internal debate within the administration recently, as some intelligence officials, reportedly including CIA chief Leon Panetta, had argued for the redaction of certain details about specific practices.

In a sign of how seriously the White House takes the issue, the statement announcing the release was attributed to the president himself rather than an official. In it, Obama says the move "is required by the rule of law" and that "exceptional circumstances surround these memos and require their release." (A fuller excerpt from the statement is below.)

However, in the same statement, Obama says one thing that will not warm the hearts of torture opponents: CIA agents and officials responsible for waterboarding will not be prosecuted. "[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution," the president says. "The men and women of our intelligence community serve courageously on the front lines of a dangerous world ... We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs."

In a statement of his own, Attorney General Eric Holder reiterated this position, saying, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department."

The president also took pains to cover an issue that had reportedly concerned Panetta -- the precedent this might set for the release of other intelligence information in the future. "Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security," Obama says. "Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities."

More from Obama's statement:

My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer ... A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program -- and some of the practices -- associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States... 

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future. 

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

By Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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Department Of Justice Torture