The CIA's Bad Apples
By JOANNE MARINER
Tuesday, July 14, 2009
Last Saturday, as part of a long article on the challenges facing Attorney General Eric Holder, Newsweek broke a new and potentially dramatic story. Relying on four "knowledgeable sources," the magazine reported that Holder is leaning toward appointing a prosecutor to look into the Bush administration's abusive interrogation practices.
According to these sources, Holder began reviewing the prior administration's detainee policies not long after he took office. What he learned was supremely discomfiting. Indeed, Newsweek said, it did not take long for Holder to realize that he might have to launch an investigation to assess whether criminal prosecutions of former officials were warranted.
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Yet some aspects of the proposed investigation raise concerns. As sketched out in Newsweek, and in subsequent articles in the Washington Post and the New York Times, the investigation would focus only on practices that went beyond what was allowed under legal advice provided by the Justice Department at the time.
The problem is that the legal advice in question—contained in memoranda drafted by right-wing ideologues like John Yoo—already authorized brutal forms of torture. Reading these memos provides a frighteningly detailed picture of the CIA's dungeons. They describe practices like "waterboarding," in which prisoners are put through the agony of near-drowning, as well as long-term sleep deprivation, violent slamming of prisoners into walls, forced nudity, and confinement of prisoners into small, dark boxes.
Not only do the memos try to redefine torture out of existence, and thus render the prohibition on torture meaningless, they also assert that the president has the legal power, as commander in chief, to order that torture be carried out.
The point of these memos was, in short, not to protect prisoners from abuse; their point was to facilitate abuse. Any decision to rely on these memos as delineating a threshold for possible prosecutions would risk making spurious distinctions between "good" CIA torturers—those who followed illegitimate guidance from above—and "bad" torturers, those who improvised. It would also risk validating the Bush administration's cynical decision to obtain bureaucratic sign-off for abuses.
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