When Justice Department lawyers engaged in a sharp internal debate in 2005 over brutal interrogation techniques, even some who believed that using tough tactics was a serious mistake agreed on a basic point: the methods themselves were legal.
Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.
In years of bitter public debate, the department has sometimes seemed like a black-and-white moral battleground over torture. The main authors of memorandums authorizing the methods — John C. Yoo, Jay S. Bybee and Steven G. Bradbury — have been widely pilloried as facilitators of torture.
Others, including Mr. Comey, Jack Goldsmith and Daniel Levin, have largely escaped criticism because they raised questions about interrogation and the law.
But a closer examination shows a more subtle picture. None of the Justice Department lawyers who reviewed the interrogation question argued that the methods were clearly illegal.
¶Mr. Goldsmith, now a Harvard law professor, unnerved the C.I.A. in June 2004 by withdrawing a 2002 memorandum written by Mr. Yoo that said only pain equal to that produced by organ failure or death qualified as torture.
In addition, in a previously undisclosed letter to the agency, Mr. Goldsmith put a temporary halt to waterboarding. But he left intact a secret companion memorandum from 2002 that actually authorized the harsh methods, leaving the C.I.A. free to use all its methods except waterboarding, including wall-slamming, face-slapping, stress positions and more.
¶Mr. Levin, now in private practice, won public praise with a 2004 memorandum that opened by declaring “torture is abhorrent.” But he also wrote a letter to the C.I.A that specifically approved waterboarding in August 2004, and he drafted much of Mr. Bradbury’s lengthy May 2005 opinion authorizing the 13 methods.Very interesting article that calls into question the picture that has been painted about the torture discussion. Up until now, it was always an attack on Bush and the OLC for authorizing these memos in secret that were so horribly flawed that nobody would ever agree with them. Now that it turns out that significant numbers of Justice Dept. lawyers came to the exact same conclusion, I wonder how that will change things.The lawyers had to interpret a 1994 antitorture law written largely with despotic foreign regimes in mind, but used starting in 2002, in effect, as a set of guidelines for American interrogators. The law defined torture as treatment “specifically intended to inflict severe physical or mental pain or suffering.” By that standard, a succession of Justice Department lawyers concluded that the C.I.A.’s methods did not constitute torture.
The only issues that provoked debate were waterboarding, which Mr. Goldsmith questioned, and some combinations of multiple techniques, which Mr. Comey resisted.
Some outside experts agree that the language of the 1994 law is strikingly narrow. “There’s no doubt whatsoever that a great deal of coercive treatment that most people would call torture is not prohibited by the federal antitorture statute,” said Benjamin Wittes, a Brookings Institution scholar who has studied interrogation policy.