Glenn Reynolds has a set of links which survey the debates ensuing from Barack Obama’s release of Bush-era legal reviews of interrogation techniques. It raises two separate sets of issues, both of which are linked. The first is whether the interrogation methods used in the past are absolutely repugnant to the American people, and more narrowly, illegal; and secondly whether any of those techniques can be used in the future.
By releasing the memos linking the Bush Administration to coercive interrogation yet holding those who carried them out blameless, the Obama administration could neatly condemn his predecessor but leave leave himself somewhat free to act in the future. One commenter at Ann Althouse’s caught the problem neatly: “otherwise the Justice Department will never do anything out of fear the next administration will hang them out to dry.”
Glenn Reynolds excerpted a comment from an NYT blog site suggesting that the motivation for the ambiguous Obama stance was to avoid entangling Democrats in past liability, suggesting that Congress in its oversight capacity shared policy responsibility for the very things the memo described.
“Most prominent among those briefed on waterboarding was Nancy Pelosi. According to the Post’s interviews, members of the Congressional oversight committees understood that they had to weigh the limits of inhumane treatment of people known to have Al Qaeda connections against the threat of new attacks. They believed that these techniques struck the right balance in the circumstances. Yet I haven’t heard of any serious call for prosecuting Speaker Pelosi or any of her colleagues for complicity in torture.”
But the future probably played a larger role in shaping the Obama administration’s administration than fears of the past. The Times Online described the reluctance of BHO to release the memos but for the advice of lawyers to do so. It described how the Bush administration went through somersaults to stay within the letter of the law; and that established the inherited boundaries which Obama may not, for reasons of self-interest, wish to retreat from.
The memos, however, show just how much effort went into squaring the techniques with the letter, if not the spirit, of international laws against torture. Interrogators were told not to allow a prisoner’s body temperature or food intake to fall below a certain level, because either could cause permanent damage. Passages describing forced nudity, slamming into walls, sleep deprivation and the dousing of detainees with water as cold as 41 degrees were interpersed with complex legal arguments about what constituted torture.
Those legal boundaries will now be challenged. But perhaps the current administration secretly wants some, if not all of it to survive. Obama will at least wish to duplicate the post 9/11 record of the Bush administration in preventing a terror attack. He will wonder whether he can do it without the methods described in the recent memos.