A CIA Lawyer’s Smoking Gun


In October 2002, 10 Defense Department lawyers and officials met at Guantánamo to figure out which interrogation techniques would finally extract information from the hard-shelled terrorism suspects there. Also in attendance was a CIA counterterrorism lawyer, Jonathan Fredman, who revealed a way that exceptionally aggressive methods could be used that would not amount to the U.S. being charged with torture.

Said Fredman: “Torture is basically subject to perception. If the detainee dies, you’re doing it wrong.” A military lawyer at Guantánamo, Lieutenant Colonel Diane Beaver, apprehensively noted: “We will need documentation to protect us.”

The helpful CIA lawyer, agreeing, acknowledged that “if someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be severely detrimental.”

That documentation was indeed provided by other high-level administration lawyers—most crucially at the Justice Department, where, inspired by John Yoo of the Office of Legal Counsel, the word went out that interrogators in the field could inflict cumulatively intense pain as long as it stopped short of “organ failure” or “death.” Any coercive technique up to that decisive point—having been authorized secretly by the Justice Department—did not violate international laws against torture and would not lead to prosecution of the interrogators.

This “perception” of legality—swiftly adopted by the president and his administration—metastasized to our prisons in Afghanistan and Iraq, the military bases holding enemy combatants in this country, and deep inside the CIA’s secret “black sites” caging prisoners around the world.

After that fateful October meeting at Gitmo, Special Agent Mark Fallon of the Naval Criminal Investigative Service e-mailed a colleague, saying that what he’d heard there “could shock the conscience of any legal body” that might someday look into the Bush regime’s interrogation methods. Added Fallon: “This looks like the kind of stuff Congressional hearings are made of.”

At long last, the previously secret memos and e-mails detailing that October meeting and its consequences were disclosed, for the first time, at a June 17 hearing by the Senate Armed Services Committee. The hearing was chaired by Democratic Senator Carl Levin of Michigan, who asked, with some alarm, during the testimony by former Pentagon officials: “How on earth did we get to the point where a senior United States government lawyer would say that . . . torture is ‘subject to perception’?”

Senator Levin should ask his colleagues—including the Democratic and Republican leaders in both the House and Senate—why it has taken so long for Congress to start digging into the official (though covert) genesis of the torture presidency and the breathtaking number of war crimes it has committed and authorized, as detailed in my last two columns (and many columns before that).

A CIA spokesman did assure us, with the straightest possible face, that the “CIA’s terrorist interrogation program has operated on the basis of measured, detailed legal guidance from the Department of Justice.”

That meaningless assurance reminded me of what Philip Gourevitch wrote in Standard Operating Procedure (Palgrave Macmillan) about our house of horrors at Abu Ghraib: “Nobody was ever charged with torture, or war crimes, or any violation of the Geneva Conventions. Nobody ever faced charges for keeping prisoners naked, or shackled, [or] for arresting thousands of civilians without direct cause and holding them indefinitely, incommunicado, in concentration camp conditions.”

As I’ve written earlier, this indictment was echoed in a letter to that prototypical Bush loyalist, Attorney General Michael Mukasey, by the 56 House Democrats, asking for a special counsel to investigate whether high-ranking administration officials—including the commander in chief himself—have committed war crimes by their warm approval of the CIA’s (and Special Forces’) appalling interrogation methods.

Still proudly at liberty himself, John Yoo is now teaching law, of all things, at the University of California at Berkeley; he is also a visiting scholar at the American Enterprise Institute. As the December 25, 2005, New York Times noted, Yoo was instrumental in justifying the grand expansion of the presidential powers that became the basis for, among other things, “the [presidential] order to try accused terrorists before military tribunals” (i.e., after being held indefinitely without charges or access to legal counsel), “the secret overseas jails operated by the CIA—and the use of severe interrogation techniques.”

On June 17, 2008, the defiantly unrepentant Yoo, in a Wall Street Journal op-ed article titled “The Supreme Court Goes to War,” displayed his contempt for the Supreme Court’s recent Boumedienne decision, which declared Bush’s military tribunals and his denial of Guantánamo prisoners’ right to habeas corpus in our federal courts unconstitutional.

The only remedy from this “judicial imperialism of the highest order,” says Yoo, the reigning moral philosopher of U.S. torture in wartime, “is the November elections. . . . The next president will be in a position to appoint a new Court that can reverse the damage done to the nation’s security.”

Who, then, is John Yoo’s choice to protect us from this “brazen power grab” by the Supreme Court? Hail to the Chief—it’s John McCain, who, reporting for duty, pronounced the court’s ruling “one of the worst decisions in the history of this country.”

This led George Will, an incorrigibly independent conservative, to attack McCain’s posturing in a sharply worded article, “Contempt of Courts,” in which he asked if McCain really believes that the Boumedienne decision ranks with decisions like Dred Scott v. Sanford (which created a constitutional “right” to own slaves), Plessy v. Ferguson (which upheld racial segregation), or Korematsu v. United States, (which affirmed the imprisonment of Japanese-Americans in concentration camps during World War II)—and if McCain had even bothered to read the court’s decision before issuing his “extravagant condemnation.”

No answer as yet from McCain, or from his mentor in constitutional law, Professor Yoo. If the Arizona senator does beat Barack Obama, who cheered the Boumedienne decision, in the presidential election, he could very well appoint Yoo—allegedly a constitutional scholar—to the next vacancy on the Supreme Court. And so it’s still an open question whether the torture presidency will continue to survive at the expense of the Constitution after November’s vote.