By Marcy Wheeler (Salon.com)
On April 16, the Obama administration released four memos that were used to authorize torture in interrogations during the Bush administration. When President Obama released the memos, he said, "It 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."
Yet 13 key people in the Bush administration cannot claim they relied on the memos from the DOJ's Office of Legal Counsel. Some of the 13 manipulated the federal bureaucracy and the legal process to "preauthorize" torture in the days after 9/11. Others helped implement torture, and still others helped write the memos that provided the Bush administration with a legal fig leaf after torture had already begun.
The Torture 13 exploited the federal bureaucracy to establish a torture regime in two ways. First, they based the enhanced interrogation techniques on techniques used in the U.S. military's Survival, Evasion, Resistance and Escape (SERE) program. The program -- which subjects volunteers from the armed services to simulated hostile capture situations -- trains servicemen and -women to withstand coercion well enough to avoid making false confessions if captured. Two retired SERE psychologists contracted with the government to "reverse-engineer" these techniques to use in detainee interrogations.
The Torture 13 also abused the legal review process in the Department of Justice in order to provide permission for torture. The DOJ's Office of Legal Counsel (OLC) played a crucial role. OLC provides interpretations on how laws apply to the executive branch. On issues where the law is unclear, like national security, OLC opinions can set the boundary for "legal" activity for executive branch employees. As Jack Goldsmith, OLC head from 2003 to 2004, explains it, "One consequence of [OLC's] power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes." OLC has the power, Goldsmith continues, to dispense "get-out-of-jail-free cards." The Torture 13 exploited this power by collaborating on a series of OLC opinions that repeatedly gave U.S. officials such a "get-out-of-jail-free card" for torturing.
Between 9/11 and the end of 2002, the Torture 13 decided to torture, then reverse-engineered the techniques, and then crafted the legal cover.
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