2001 – 2007: Justice Department Office of Legal Counsel redefined the parameters of torture

The Office of Legal Counsel was established to serve as the “constitutional conscience” of the Justice Department:

“OLC is, and views itself as, the frontline institution responsible for ensuring that the executive branch charged with executing the law is itself bound by law. The danger, of course, is that OLC lives inside the very political executive branch, is subject to few real rules to guide its actions, and has little or no oversight or public accountability.” Jack Goldsmith, headed OLC (Oct. 2003 – July 2004)

From 2001 to 2007, lawyers in the Office of Legal Counsel (OLC) issued a series of dubious “Torture Memos” — all maintaining that any interrogation method the CIA planned or had used were legal. The memos were crafted by OLC lawyers to provide a legal shield indemnifying the officials at the White House and Pentagon who authorized torture, and the CIA agents and contract-psychologists who implemented torture. Professor David Cole, a constitutional expert at the Georgetown University Law Center has identified these memos as the real “smoking gun” in the torture controversy.

The memos provide detailed descriptions of the various forms of torture tested and used on detainees suspected of terrorism; these include waterboarding, exposure to cold water, beatings, sleep deprivation, extreme isolation, painful stress positions, confinement in coffin-like boxes, slamming people into walls and forced nudity. The memos stipulated that these procedures were not torture; did not violate the Geneva Conventions; and were legal if health professionals were present and deemed that these techniques did not cause “severe, long lasting physical or mental pain and suffering.”

Jane Mayer, who early on brought to light the CIA torture program in her series of articles in the New Yorker (2005), describes the experience of Jessica Radack, a young attorney in the Justice Department’s Honors Program who believed that the role of the ethics office was to “rein in the cowboys” whose zeal to stop criminals sometimes led them to overstep legal boundaries. She dispensed ethics advice concerning interrogations that contradicted the wishes of the Administration leadership and the “legal opinion memos” crafted by OLC lawyers to support the administration’s venture into torture. When a federal judge demanded to see the internal DoJ records relating to a particular detainee, all of Radack’s emails, including the advice she had dispensed, had been deleted and the hard copies removed. None of this information was furnished to the court.

“It was like ethics were out the window. After 9/11, it was, like, ‘anything goes’ in the name of terrorism… after 9/11 we were bending ethics to fit our needs. Something wrong was going on. It wasn’t just fishy—it stank.” (Scott Horton, Harper’s Magazine, 2008)

And it stank from the top; a carefully crafted national policy that “overstepped legal boundaries” not to speak of moral boundaries was fully endorsed by the Department of Justice.