Balkinization: Bradbury on Torture

Bradbury on Torture

Marty Lederman

Steven Bradbury, who is Deputy Assistant Attorney General for OLC (there has not been an official AAG at OLC for some time), is testifying today before the House Intelligence Committee. Here's his written statement. Not much to speak of there, except to note that he will not discuss the CIA techniques that have been deemed legal or unlawful, other than a welcome suggestion that hypothermia ("extremes in temperature") is now proscribed, even under DOJ analysis. Bradbury confirms that DOJ (that is, AG Mukasey) continues to adhere to the legal analysis in the December 2004 OLC opinion, with its indefensible reading of the torture statute. Bradbury also confirms what others in the Administration have been saying recently -- namely, that the "enhanced techniques" are used not merely in proverbial (but in fact mythical) "ticking timebomb" situations, but instead whenever the method in question is deemed "necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership."

Also, and perhaps most notably, Bradbury confirms that the Administration "has briefed the Intelligence Committees on the operational details relating to the program, including all of the interrogation practices that have been employed, or are currently authorized to be employed, and the authorities supporting those practices." Yet the members of the Intel Committees have done nothing about it -- not even to publicly reveal the Administration's "authorities." Yes, this can be explained in part by the fact that if they did talk, they would be accused (absurdly) of providing classified information to the enemy. But even if members of the Intel Committees did dispute OLC's legal conclusions as to some techniques, it's not clear that they'd be inclined to actually do anything about it, nor is it clear what they could do. The system of oversight is fundamentally compromised.

Posted 10:52 AM by Marty Lederman [link]

Comments:

Apparently, contrary to speculation here and elsewhere, the Executive has briefed Congress on the Executive's legal opinions on whether the CIA interrogation program is lawful.

Consequently, any doubt that the Intelligence Committees have expressly or implicitly approved the CIA interrogation methods is dispelled. The Intelligence Committees have been fully briefed on both the operational and legal sides of this issue and have no excuse for declining to take action if they thought that the program was illegal.

The contention that the Intelligence Committees are powerless to act has no foundation. They can file articles of impeachment for criminal violations of the torture statutes and make public the unlawful techniques. The Speech or Debate Clause will protect members of the committees from prosecution for disclosing classified materials even if some court would be inclined to find that the Executive has the power to classify criminal activity.

The fact that the Congress passed a bill amending the statutes to outlaw the CIA interrogation program by adopting the clear standards of the Army Interrogation Manual indicates that the Executive did a good job convincing Congress that the hopelessly vague torture statutes do not in fact prohibit the CIA interrogation program.

# posted by

Bart DePalma : 12:15 PM

Must be a misquote, if only hypothermia (low temperatures) than "the box" is still legal.

--
Given DoJ/CIA resourcefulness I wonder what they mean by hypo, below 40 degrees? 50 when they feel particularly humane? I kind of doubt low 60s the normal meaning of chilly room. (Cheney demands 68 deg everywhere he goes).

# posted by

wg : 12:54 PM

I've seen that they don't just crank the temp down to 50F, which would be annoying but tolerable, but they also strip you naked and douse you with cold water.

They have to have a physician periodically check your core temp to be sure you're not about to die.

One rule of thumb would be, if you have to have a doctor on hand to make sure the subject survives the interrogation, then it's torture.

# posted by

Anderson : 12:58 PM

They can file articles of impeachment for criminal violations of the torture statutes and make public the unlawful techniques. The Speech or Debate Clause will protect members of the committees from prosecution for disclosing classified materials even if some court would be inclined to find that the Executive has the power to classify criminal activity.

Yeah, but jerks like you will accuse them of treason.

# posted by

Dilan : 2:07 PM

Dilan:

Stop making excuses for your Dem Congress.

The Dem members of the Intel Committees either support the CIA interrogation program or are rank cowards unable to do their duty as your representatives.

My GOP Senator and Representative do what I voted them in to do. You are free to stop voting for your Dem Senators and Representative if they do not do what you voted them in to do. Making excuses for their actions and then reelecting them to office is cowardly and pathetic.

# posted by

Bart DePalma : 2:19 PM

Hmm, time for that rule of thumb again. TPM reports on Bradbury's testimony today:

The Spanish Inquisition would use [waterboarding] to the point of "agony or death."

But the CIA wasn't doing that, he argued. "Strict time limits" were involved -- presumably governing the length of time that interrogators could induce the sensation of drowning. There were "safeguards" and "restrictions" that made it a much more controlled procedure. Because of that, he said, the technique did not amount to torture.

Kinder, gentler waterboarding -- it's the American way of torture.

No wonder the Dems don't want to confirm this swine. I imagine they'll roll over, however.

# posted by

Anderson : 3:25 PM

"Bart": Please stop this sh*te:

Apparently, contrary to speculation here and elsewhere, the Executive has briefed Congress on the Executive's legal opinions on whether the CIA interrogation program is lawful.

Consequently, any doubt that the Intelligence Committees have expressly or implicitly approved the CIA interrogation methods is dispelled.

The fact that Congress has been "briefed" (in whatever form or manner and no matter how disingenuously or incompletely), even if we assume that such happened arguendo, has nothing to do with Congressional "approval" of CIA methods. Not to mention, Congressional "approval" (much less "approval" by some subset of such) is irrelevant to what the law is. Laws passed by Congress require a majority vote by both houses (as well as presidential signature or an over-ride). Congresscritters can say whatever they want, but until they enact legislation, it has no legal effect.

You have repeated this canard multiple times, and everyone has heard it and ignored it like the ignerrent blather it it. Now please, settle for saying it only thirty seven times, and from now on, desist. Thanks in advance.

Cheers,

# posted by

Arne Langsetmo : 4:09 PM

"Bart": They can file articles of impeachment ...

[Dilan]: Yeah, but jerks like you will accuse them of treason.

No, worse: Partisanship. A capital crime.

Cheers,

# posted by

Arne Langsetmo : 4:12 PM

"Bart":

The Dem members of the Intel Committees either support the CIA interrogation program or are rank cowards unable to do their duty as your representatives.

Oh, I agree. But Dubya is still both a criminal and a vicious thug and bully. The tu quoque, in whatever twisted form, is still a fallacy. See here for more.

Cheers,

# posted by

Arne Langsetmo : 4:16 PM

anderson:

Kinder, gentler waterboarding -- it's the American way of torture.

That's why they said it depends on the "circumstances", I guess.

We're willing to be "gentle" ... as long as we do enough so we still get 'em to talk....

Cheers,

# posted by

Arne Langsetmo : 4:18 PM

One rule of thumb would be, if you have to have a doctor on hand to make sure the subject survives the interrogation, then it's torture.

Seems like a good rule to me. So what about it, Bart? In the absence of an express statutory ban on any life-threatening interrogation techniques, can the CIA reasonably be expected to regard any technique that requires a doctor on hand to make sure the subject survives as unlawful?

# posted by

Essayist-Laywer : 4:33 PM

Bart:

That's a non-answer. Are you telling me that if the Dems disclosed the information, you WOULDN'T accuse them of disloyalty?

# posted by

Dilan : 4:43 PM

dilan said...

Bart: That's a non-answer. Are you telling me that if the Dems disclosed the information, you WOULDN'T accuse them of disloyalty?

No, what would be treasonous or disloyal about such an impeachment attempt?

I would however accuse them of abusing a vague statute to stage a partisan motivated prosecution.

I am confident that the American voters would see such an impeachment for what it was and that is why the Dems are not trying it.

# posted by

Bart DePalma : 5:29 PM

That's better but still not quite an answer. Why does disclosure have to be coupled with an impeachment attempt? What if a Congressman simply decides that this is something that he feels the public has a right to know, calls a public oversight hearing, and discloses it at the hearing?

Are you telling me that you wouldn't call that disloyal? That the rest of the conservative movement wouldn't?

# posted by

Dilan : 6:44 PM

dilan said...

That's better but still not quite an answer. Why does disclosure have to be coupled with an impeachment attempt?

1) Crimes should be punished. If I believed that this was genuine torture, I would be calling for Bush's impeachment.

2) The Executive cannot classify criminal activity. Therefore, there is no argument about whether Congress is disclosing classified information to the enemy.

What if a Congressman simply decides that this is something that he feels the public has a right to know, calls a public oversight hearing, and discloses it at the hearing?

1) It is not his prerogative to declassify information.

2) Practically, he can escape prosecution for disclosing classified information to the enemy through Speech or Debate Clause immunity. However, the Executive can also shut down all briefings to Congress until they prove themselves able to keep a secret again.

Are you telling me that you wouldn't call that disloyal? That the rest of the conservative movement wouldn't?

I do not speak for the rest of the "conservative movement."

If the Congress puts its own ass on the line by going forward with impeachment, then I do not consider it disloyal to disclose the evidence of what they believe to be criminal behavior. Impeachment is pretty drastic and rare action. I trust all but the most partisan will treat that responsibility with care.

However, simply disclosing top secret information to the enemy because you think that it ought to be public is providing aid and comfort to the enemy. This is one intent step short of treason. I have roundly condemned the NYT for this and would have no problem taking a congressman to task.

# posted by

Bart DePalma : 10:12 PM

[Dilan]: That's a non-answer. Are you telling me that if the Dems disclosed the information, you WOULDN'T accuse them of disloyalty?

["Bart"]: No, what would be treasonous or disloyal about such an impeachment attempt?

I would however accuse them of abusing a vague statute to stage a partisan motivated prosecution.

I'm a freakin' geen-yus 9from above):

[Dilan]: Yeah, but jerks like you will accuse them of treason.

[Arne: No, worse: Partisanship. A capital crime.

One does have to wonder what the Bartster™ thought of the Clinton perse... um, sorry, "prosecution". Actually, one doesn't. "Bart" thought it proper to impeach a president for what was nobody's business and for what violated no law. For te pure purpose of embarrassing the president:

"In the latest travesty, as revealed by the Washington Post,
Starr used prosecutors and FBI agents to interrogate Arkansas
state troopers about women with whom Bill Clinton allegedly had
affairs prior to his presidency. Starr's deputy argues that
they had a duty to find out whether Clinton might have confided
some incriminating statements to these women. Fine--until you
consider the questions Starr's agents actually asked. They
wanted to know whether one woman had borne a child who
resembled Clinton and whether any of the officers had witnessed
Clinton having sex with local women."

(U.S. News and World Report, July 21, 1997)

All before Lewinsky fell into Starr's lap and he had any even remotely plausible reason for this. Talk about "rule of law". *sheesh* It's enough to gag
a whale.

Cheers,

Cheers,

# posted by

Arne Langsetmo : 11:00 PM