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Obama Was Right to Release Torture Memos

Jameel Jaffer,
Director, Knight First Amendment Institute
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April 20, 2009

( on . is a British organization and magazine that promotes freedom of expression.)

Last week the Obama administration released four legal memos that supplied the basis for the Bush administration鈥檚 torture program. The memos, which were disclosed in response to a lawsuit that the 老澳门开奖结果 (老澳门开奖结果) filed five years ago, include detailed descriptions of the interrogation methods that CIA interrogators were authorized to inflict on prisoners in their custody. Described methods included 鈥榯he facial slap鈥, 鈥榯he water board鈥, and perhaps most grotesque, 鈥榗ramped confinement box with insect鈥.

These revolting memos shouldn鈥檛 have been written in the first place, but the Obama administration was right to release them. The public can now better understand the nature of the CIA鈥檚 interrogation and detention program, and the role that Justice Department lawyers played in developing and implementing it. CIA officials reportedly pressed President Obama to withhold key passages in the memos, but the president rightly recognized that redacting these passages would have enmeshed the new administration in a cover-up of the Bush administration鈥檚 crimes.

In a published in the Wall Street Journal, Michael Mukasey (who served as attorney general from 2007 to 2009) and Michael Hayden (who served as director of the CIA from 2006 and 2009), contend that President Obama鈥檚 disclosure of the memos makes the United States less safe; they argue that the disclosure of the memos, and of the interrogation techniques discussed in them, unwisely broadcast to terrorists 鈥榯he absolute limit of what the U.S. government could do to extract information from them鈥, and they warn that terrorists will now 鈥檚upplement their training鈥 so that they can resist the described techniques. They add that the disclosure of the memos will make CIA interrogators timid and risk-averse, unwilling to use 鈥榓ggressive鈥 methods even when Justice Department lawyers assure them that such methods are lawful.

But the methods described in the memos are illegal under both domestic and international law, and they were illegal when the Bush administration endorsed them. For years, the U.S. State Department鈥檚 human rights reports have described these methods as torture. And after the Second World War, the United States prosecuted Japanese commanders for having inflicted some of the methods that the memos purport to authorize. It does not compromise national security to broadcast to the world that the US will eschew methods that are criminal under US and international law, that the State Department has described as torture, and that the United States has previously prosecuted as war crimes. Indeed, to propose that the nation鈥檚 security would be compromised by that message is to propose that the nation鈥檚 security would be compromised by the rule of law.

Nor will it be unfortunate if CIA interrogators hesitate before relying on legal advice that strikes them as implausible or wrong. Indeed, there is something astounding about a former attorney general characterizing this kind of hesitation as 鈥榯imidity鈥. Anyone who reads the memos will understand immediately that the CIA and Justice Department each sought to absolve itself from responsibility for torture by basing its actions on transparently worthless assurances from the other. It would be a good thing if CIA interrogators hesitated before entering into this kind of arrangement again.

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