The Torture Memos

I meant to write about this sooner, but I’m still recovering from the shock of it all. While riding home from work yesterday I happened to catch this NPR report on a couple of memos, one from the Department of Defense and the other from the Justice Department, that were leaked to media outlets which attempt to outline possible legal loopholes or arguments that could be use to justify the use of torture by the administration. Amazingly, the memos completely contradict public statements on other administration policies on torture including arguments presented by the administration to the Supreme Court.

Naturally this has led to Congressional calls for public release of the memos and during a Senate Judiciary Committee session on Tuesday various Senators asked Attorney General John Ashcroft to do just that. Shockingly not only did Ashcroft absolutely refuse to release the two memos, but he also refused to discuss anything about their content or even who wrote them. He did this without invoking Executive Privilege or any of the other possible legal justifications he might use to avoid having to address the questions. Without a justification he has no legal basis to refuse to answer the questions of Congress and this was pointed out to him by Senator Richard Durbin.

Ashcroft Refuses to Provide Torture Memos

June 9, 2004—Attorney General John Ashcroft refuses senators’ demands for copies of legal memos, prepared by Bush administration lawyers in 2002 and 2003, that reportedly state the president has the right to order torture in his role as commander in chief.

One memo was prepared by the Justice Department in August 2002 in response to a request from the CIA for guidance on how far it could go in conducting interrogations. A second memo, dated March 2003, was prepared for Defense Secretary Donald Rumsfeld by a team of lawyers from many parts of the Bush administration, including the office of the vice president. Ashcroft is refusing senators access to both memos, which were revealed in media reports this week.

In refusing to discuss the contents of the memos before the Senate Judiciary Committee Tuesday, Ashcroft said his department’s advice to the president must remain confidential. Ashcroft also refused to say whether President Bush has authorized force or other techniques in interrogation.

The folks at NPR have a link to a copy of the memos in PDF format for you to read for yourself. The audio version of both news items is well worth listening to just to hear some of the justifications these guys tried to come up with. Meanwhile, President Bush spent today dancing around any questions about the memos as best he could manage. – Bush says he never authorized illegal interrogations

Asked whether he has seen the memos, Bush replied, “I can’t remember if I’ve seen the memo or not.” But he reiterated that he had instructed that the treatment of terror suspects stay within U.S. and international laws.

Bush was asked, “If you knew a person was in U.S. custody and had specific information about an imminent terrorist attack that could kill hundreds or even thousands of Americans, would you authorize the use of any means necessary to get that information and to save those lives?”

“What I’ve authorized is that we stay within U.S. law,” he responded.

I have to admit that I was personally very surprised to think that anyone in this administration would stoop so low as to try and justify the use of torture. I consider this to be one of the worst administrations this country has ever seen, but somehow I managed to convince myself that even these assholes, as bad as they are, wouldn’t pause to consider the possibility of using torture. I chalk this up to the last vestiges of youthful idealism I might have stashed away someplace.

I missed last night’s episode of The Daily Show with Jon Stewart where Jon rips Ashcroft a new asshole over his testimony. You can see the clip at the official website, but only if you have Real Player (blech!) installed. Fortunately the folks at Everything Isn’t Under Control have been kind enough to host the clip in DivX format for the rest of us and it is definitely worth the download. There’s also a BitTorrent seed for the clip if you want to avoid sucking up all of their bandwidth. If you’re as stunned and pissed off about this whole turn of events as I am then you’ll want to watch Jon Stewart’s report so you can laugh at it at least a little. Best of all is Senator Biden’s comments about why the U.S. signed those treaties banning torture in the first place.

It’s getting pretty fucking sad around here when one of the best news sources out there is on a friggin’ comedy channel.

26 thoughts on “The Torture Memos

  1. Asked whether he has seen the memos, Bush replied, “I can’t remember if I’ve seen the memo or not.

  2. This administration is truly counting on the apathy of the American people if it believes in a second term.  It’s almost as if they’ve become so emboldened as to not even cover up their own lies anymore.  ‘Just wait a day or two and change the story.  That’s all the attention span the people have anyway.’  Sickening.

    Ashcroft is just a miscreant
    [Quote]Ashcroft also told the committee that the Bush administration had determined that Al Qaeda operatives were not covered by the Geneva Conventions because they did not belong to governments that had signed the agreements and did not meet other requirements, such as wearing of recognizable military uniforms.[/Quote]
    Based on the definition, as outlined in article two, I can see how his delusional mind could come up with that.

    [Quote]Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. – Article 2, Geneva Convention[/Quote]

    They left this administration with just enough room to weasle around in.

    Biden’s response was excellent.  We adhere to it for our troops.

  3. These assholes are trying to use the letter of the law (Geneva Convention) to get around the spirit of the law (humane treatment). Fucking Shitheads.  angry

    PS. Wanna good laugh? Go here (use IE, crashed my Firefox).

  4. Spocko – Dammit, don’t post that stuff after dinner.  It’ll take forever to get the spaghetti out of the carpet now.  Sounded like John was choking the eagle.

  5. Sen. Joseph Biden, D-Del., his voice booming, suggested that American military personnel could be in greater danger of torture because of the U.S. mistreatment.

    “That’s why we have these treaties. So when Americans are captured, they are not tortured. That’s the reason, in case anybody forgets it,” said Biden, noting that his son, Beau, is in training for the Delaware National Guard’s judge advocate general office.

    Glaring back at the committee, Ashcroft responded that his son, Andy, recently returned from duty in the Persian Gulf aboard a Navy destroyer, the USS McFaul, and is scheduled to return there soon.

    “Well, as a person whose son is in the military now on active duty and has been in the Gulf within the last several months, I’m aware of those considerations,” he said.

    Right, Mr. Ashcroft… when was the last time terrorists took over a US navy destroyer and captured any of the crew.  Your kid was perfectly safe and you know it.  Aaargh!

  6. Your kid was perfectly safe and you know it.

    Well, the families of the USS Cole dead might question that “perfectly safe” assessment. And unless Ashcroft’s son never takes shore leave, he’s certainly vulnerable to assault, kidnapping, and torture in those circumstances.

    That aside …

    Okay, I’ve read the full PDF linked to above via NPR.  It’s the DoD memo.  And, frankly, what it says is:  What’s torture?  According to international treaty, it’s this.  According to US law, it’s this.  According to military law, it’s this.  This is how each of those frameworks might affect or be enforceable regarding operations in different locations.

    Which, frankly, seems a perfectly reasonable thing to review, at least as a subject.

    As to the legal accuracy of what’s summarized, that’s certainly open to debate.  But to turn ana analysis of what’s legal into a smoking gun of trying to “outline possible legal loopholes or arguments that could be use to justify the use of torture by the administration.”

    Because the question is, what is torture?  Given the wide range of activities that could be considered torture by different people (even assuming that nobody’s using such accusations for other than humanitarian ends), an analysis like this—what does the law say, which law is applicable where, etc.—would seem to be essential.  That’s why we codify laws and treaties in the first place.  That’s not searching for loopholes, that’s being legally diligent.

    To put it in a different light, I feel I have a legal and moral obligation to pay my taxes, as part of my contribution to our society.  If I ask TurboTax (or a personal accountant, or tax advisor) to analyze my taxes to see if there are legal deductions I can take, or call the IRS Help Line to learn if particular income is considered taxable in my jurisdiction, does that make me a tax cheat, or an irresponsible citizen, or an immoral parasite on society?  I don’t think so.  Nor do I think that analyzing what laws and treaties say constitutes torture (as opposed to just going with a gut hunch or personal whim), and which of them are legally applicable in what circumstances, makes the Administration a bunch of torture boosters.

    That people seem to think otherwise (or are quick to jump to that conclusion) helps explain why the Administration has been reluctant to release the memos.  I disagree with that tactic, I think, but I can understand it.

    And, no, I don’t believe that Bush saw at least that memo.  I don’t imagine he takes the time (interest or no) to wade through 50-odd pages of legal opinions and analysis.

  7. Dave, good point about the Cole; I didn’t think of that.  Shore leave does have some vulnerabilities too.  So Ashcroft’s kid isn’t perfectly safe. 

    But I have to stand by the likelihood that he’s a damn sight less likely to be captured and tortured than a soldier on patrol around Fallujah.

    Can’t agree that it would be OK to push the limits on torture as with taxes.  “Winning” this war is as much a matter of perception on the Arab street as of firepower, perhaps more.  Once we’re perceived as smirking crusaders, we’ve lost this mission.

    Captcha: “action”

  8. But I have to stand by the likelihood that he’s a damn sight less likely to be captured and tortured than a soldier on patrol around Fallujah.


    Can’t agree that it would be OK to push the limits on torture as with taxes.  “Winning

  9. [Quote]There’s certainly something to that.  Going to the edge of legality (at least) isn’t necessarily a winning strategy.  But it’s also difficult to win a war by being Caesar’s wife, and I would rather that folks were looking at what the legal limits are, than that they simply play it by the utilitarian ear.[/Quote]

    I would agree if we were talking about an administration with a track record for researching the law and analyzing the ramifications of its actions.  Reading the memo, in the context of the adminstration’s actions, leads me to believe that they were actually looking for a way around established procedure.  It could be they were establishing boundries but if that were the case, and all this research had just recently taken place, shouldn’t there have been an increase in awareness of these boundries at command levels?

  10. It could be they were establishing boundries but if that were the case, and all this research had just recently taken place, shouldn’t there have been an increase in awareness of these boundries at command levels?

    Speaking as someone who works for a corporation that’s two orders of magnitude smaller than the DoD—and even as a middle manager thereof who’s only four levels below the CEO (which isn’t nearly as impressive as it sounds), there are lots of policy discussions that go on at the upper levels that I only find out way after the fact.

    As to the track record, I’m reluctant to go beyond face value in making those sorts of evaluations, if for no other reason than what the track record actually is seems to be more of a matter of opinion than concrete fact.  Connecting the dots is often a matter of what dots one chooses to see.  I’d rather focus on making sure the dots are really there.

  11. I agree with Dave. Granted, I haven’t actually read the memos, and I think torture would be a moral and a strategic blunder, but merely asking for legal advice on what kind of questioning is or isn’t torture is perfectly legitimate.

    Indeed, I would question the sanity of any administration that failed to clarify what constituted torture. Sorry, but I think that if a Democratic president had requested a memo on the legal definition of torture, y’all would yawn and return to your cereal.

    That being said, I think that the torture that did take place at Abu Graib was abhorent, and I think people much higher up should take the fall for failing to prevent it if nothing else. Like Donald Rumsfeld.

  12. Once again, I would agree with your explanation if we were discussing corporate America.  My experience with the military has been when it comes to a policy such as this, it gets disseminated, and it gets disseminated quickly.  Some of the major policy changes that I can recall being implemented within weeks were the change to the sexual harassment policy and the gays in the military policy.  The gays in the military policy in particular was interesting because the Judge Advocate General hadn’t even finished outlining the legal speak of the issue at the time we were implementing it.

    I truly hope that you’re right.  Based on the evidence provided, the conclusions drawn will be biased towards individual perceptions.

  13. If all the Democratic administration did was order up a memo, yeah, I probably wouldn’t pay it much mind. However if the abuses then ocurred like the ones at Abu Ghraib then I guarantee that I would be all over their shit just like I am all over Bushs. The real problem is not THAT they explored the idea of torture, it is WHY they explored it.

    It appears that they were looking to avoid any responsibility for the actions they set in motion. When you do that it implies some forethought so I don’t see where they can keep using the ‘bad apple’ defense. But maybe it’s just me.

  14. The real problem is not THAT they explored the idea of torture, it is WHY they explored it.

    Well, what you lack is proof. First we have a memo asking for the legal boundries of torture, then we have some actual torture. Did the first one create or set the conditions for the second?

    Maybe, maybe not. There is no direct line connecting the two, although a reasonable person can posit a causal connection. I still like to withold judgement when you plain just don’t know.

  15. Fair enough Zachary, I concede there is no direct line, and it is very likely that even though I believe one exists it will never be found. Bush may not be very intelligent but he is clever like a chimpanzee and will no doubt be able to claim his plausible deniability.

    It’s the very actions of this administration that causes me to think the worst of them especially their Nixonesque devotion to absolute secrecy and their infuriating invokation of National Security as a reason to keep the public in the dark about EVERYTHING. National Security has been used so often as an excuse to cover up inconvenient facts like which campaign contributors help set national energy policy have lost all meaning and is fast becoming the punchline of a very bad joke. And their record of truthfulness leaves a great deal to be desired from Saddams infamous ability to attack us with his WMDs in 45 minutes to the low balled price tag on his Health Care plan. Man, I have got to stop before I pick up speed or I could be at this all night.

    Suffice it to say that I believe the administration (most likely Rumsfeld) is responsible for at the very least floating the idea of torture to the top brass, and since all good soldiers know that commanding officers do not give suggestions, only orders, they were carried out “informally”. As usual every coward who can hide behind their bars is letting the enlisted men take the hit hoping like hell that the anemic punishments meted out will show the world just how serious America is in punishing the “bad apples”. Don’t misunderstand me, those enlisted men and women and all of the Titan Corporation Mercenaries (oops, contractors) involved need to be cruxified for their acts, but there are MANY more above them that need to be flushed from their burrows.

    Bush is responsible at least in so far as it happened on his watch, the whole buck stops here thing, and given his track record from coke snorting Bonesman until today I suspect he is neck deep in it. But I agree with you that it will likely never be proved.

    Still, there are those who feel Clinton was an embarassment to the office of the President. How I long for the days of hide the cigar in the intern!

  16. First of all, I hate being in the position of defending Bush, because I think he’s an awful president. However, I have this compulsion to debunk what I consider invalid criticism of him. Call it a character flaw.

    Today I was thinking over the whole memo/torture thing, and I had a sudden logical epiphany. Not only is there no proven connection between the memo and the torture that actually took place, but the whole idea of a connection is implausible.

    Why? Because the presence of the memo suggests that they wanted to get right up to the edge of torture but not cross it. Otherwise, why bother researching it at all? The people at Abu Graib, however, crossed it with abandon. That itself makes any direct connection improbably.

    It’s like the tax analogy that someone mentioned above. Why bother getting professional tax advice about how to stay just on this side of the law if you’re going to go and totally disregard it and make totally unambiguous, gratuitous, “audit-me-now” violations? It just doesn’t make sense.

  17. I think it’s unlikely that a direct line can be drawn between Event A (memos and legal opinions) and Event B (Abu Ghraib).  The question might be whether loosened/expanded guidelines on what sort of prisoner interrogation techniques were allowable created an atmosphere in which folks felt little compunction about going further.  That’s obviously a problem, but not quite the same thing.

    I agree that the use by this Administration of “national security” and “executive privilege” for everything under the sun is deeply irksome, even dangerous.  I think it’s possible to understand why they’ve done it without being a conspiracy theorist—leaks of info and those who have leapt to take advantage of it have stymied any number of White House initiatives over previous administrations, of both parties—but it has, at the very least, come back to haunt this administration by fostering an atmosphere of mistrust.

  18. Dave, you make some good points.  I think the reason people are so outraged (or ought to be) over these exploratory memos is the same reason we get outraged over corporations using every possible loophole in the tax law to avoid paying what we think is their fair share of taxes.  Yes, they’re doing it legally (mostly), but we all know that the END EFFECT of what they’re doing is morally reprehensible.  That’s the reason why nobody is getting bent out of shape about my taking a tax deduction for dumping my clothes at Goodwill, but they do about the idea of someone with an income of over $200,000 managing to pay no tax at all.

    The fact of our government employees engaging in what clearly was torture, and the evidence of our government trying to determine the enforceability of laws and treaties prohibiting torture, very justifiably creates outrage.

  19. There’s one fact that most of you have overlooked in this discussion and which is the basis for my outrage. The memos come to conclusions about what is and isn’t legally torture that are directly contradicted in public statements made by the Bush administration officials including in testimony before the Supreme Court.

    That’s what has got my panties in a twist. The appearance, and I admit it’s only an appearance, that they are saying one thing publicly and another thing privately.

  20. Yes, they’re doing it legally (mostly), but we all know that the END EFFECT of what they’re doing is morally reprehensible. … The fact of our government employees engaging in what clearly was torture, and the evidence of our government trying to determine the enforceability of laws and treaties prohibiting torture, very justifiably creates outrage.

    Actually, the former justifiably creates outrage; the latter points out the need to carefully consider how we laws being framed. Power will, ultimately, corrupt; that such a lengthy review was necessary to establish (if that’s what was being looked for) loopholes is actually a good thing, since it implies that the law covers stuff and that the need to follow it is respected.  If those laws did not prevent the actions we feel are necessary, then they need to be strengthened.

    If the action taken based on the memos is in contradiction to testimony, then the administration deserves to be called on the carpet over it.  That’s still a difficult connection to make, though, since the DoD memo, at least, doesn’t actually establish policy or represent the official conclusions of the administration, but an analysis done for the administration from which they could draw their own conclusions (heaven knows how many memos and analyses *I* write for upper management that don’t reflect the decisions they eventually make).

  21. There is some new evidence on causality. This is from today’s Slate.

    Following up on its recent Abu Ghraib bird-dogging, the Washington Post off-leads word that as suspected, Ricardo Sanchez, the senior U.S. military officer in Iraq, approved the use of militery dogs, temperature extremes, and diet manipulation as interrogation tactics. In a development that spells both good and bad news for the Pentagon, documents obtained by the paper show that before last October, such draconian methods required no approval outside the prison, which naturally “gave officers at Abu Ghraib wide latitude in handling detainees.”

  22. I didn’t watch the clip until tonight, but I have to say, I don’t know when I’ve seen a more bittersweet offering (both painful and pleasurable in hefty doses) and this clip is amazing even for the Daily Show. Senator Biden deserves much credit for his composure. I couldn’t have been that civil.

    Ashcroft has less right to his job than a cricket does, and a cricket can even sing better.

    Thanks for posting this, Les.

  23. No, there’s video with it as well. You probably don’t have the Divx codec installed. You can pick that up at There’s a free codec you can install so don’t let all the advertising for the paid version fool you.


    If you lived in the 1940’s or read widely in the rise of Fascism. as exemplified by Adolph Hitler, Benito Mussolini, and Francisco Franco. and matched them to actual events and quotes from the Bush Administration, you surely must come to the conclusion that the Bush Administration is made up largely of fascist-minded Corporate Executive types, who are avid for money and power, and are eager to let other people die for their ambitions.

    Their religion is the almighty Dollar covered with a mantle of Christian fundamentalist evangelism, with religiosity and piety dripping like hot lard over their rhetoric. They wrap themselves in slogans, flags, pledges, icons and crosses to avoid any criticism.  They have even made criticism tantamount to treason.

    They excel in exploiting any tragedy for their own personal benefit, profit or glory. Bush never tires of swaggering and strutting across the September 11th New York scenery as though he did anything to prevent the tragedy, before or since. But he exploits tragedy, and promotes fear, for cash and votes, without any shame. Bush people’s compassion is that of an alligator.

    Most of them are draft-dodging cowards, personally averse to pain or serving their country in wartime, but they all speak mightily of bloodshed, bombs, terror, vengeance, and other acts of violence in order to gain resources. Bush is still the spoiled brat, child of high privilege, whose daddy has pampered and protected him all the way.

    The Bush people planned a war long before September 11th Terror attack, but used it as an excuse to declare war by lies, exaggerations, deception and beating the war-drum day and night. They bullied American allies, they alienated friends, they ruined 200 years of diplomacy with their impatient and reckless eagerness to impose violence and rule the world.

    They don’t have to look outside of themselves to find EVIL.

    Bush has many of the qualities of a top fascist imperialist: impatience, intolerance, impulsive, stubborn, inability to accept responsibility, inability to change course, hasty judgment, deceptive, a thirst for power, enormous ego, low cultural attainments, and a child-like vindictiveness toward any slights of his imperial pretensions. Not as pudgy as Mussolini perhaps, nor with a little mustache like Adolph, but looking more and more like Julius Caesar. All Hail!

    Peter Fredson

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