President Barack Obama yesterday released the memos that established the Bush administration’s flawed legal justification for specific types of torture. Obama also made the correct and responsible decision when he simultaneously ruled out prosecution of CIA operatives who acted in good faith on that legal guidance. Those actions may seem at odds with each other, but they reflect this administration’s commitment to the rule of law and transparency, as well as Obama’s commitment to protecting the men and women on the front lines who often risk their lives in secret to protect the United States. .
Much is already known about the Bush administration’s pursuit of a legal justification for torture, largely through leaks and press reports. This official disclosure, which came as a result of a court order with only the names of CIA operatives redacted, provides new information about the legal arguments marshaled to support specific techniques, how and in what combination they could be applied, and the interrogation program for one particular detainee. The cold analysis of technique after technique is chilling, but what is most disturbing is the obvious attempt to provide retroactive legal approval for an already settled torture regime. Americans deserve to know how poorly their government performed.
President Obama has ruled out using any of the interrogation techniques of the Bush torture program, so none of the information in the memos would compromise ongoing national security operations. Former CIA Director Michael Hayden’s argument that now Al Qaeda knows what we won’t do during interrogations is pathetic. Real interrogators have long known that the best method of interrogation is rapport building and detailed repetition. If Al Qaeda knows we are not going to torture them, they should be more concerned, not less.
But releasing the memos was not a straightforward decision relating only to transparency. The president’s top intelligence advisers strongly resisted disclosure on grounds that release would constitute a breach of faith and that the intelligence community would find it difficult to trust the new administration. This concern is not without merit and should not be viewed as the intelligence community behaving badly. Going forward, it is vitally important that agents in clandestine and covert operations—which exist at the edge of legality in the best of times—follow and accept legal and policy guidance from Washington.
The second part of Obama’s announcement—that the administration would not prosecute CIA agents who acted in good faith on the legal guidance—was necessary to preserve the relationship between the field and headquarters. It is important to recognize, however, that it was not the actions of the current administration that put our intelligence agents in legal jeopardy.
Obama could have made the easy decision to fight disclosure in court or release a heavily redacted version of the memos that would have added nothing to the public’s understanding of the issue. We know which choice President Bush would have made. But Obama opted for release with assurances that the agents involved would not be criminally charged. He satisfied the demands of transparency and the rule of law while protecting as best he could American intelligence operatives in the field. Even though the content of disclosure is about decisions made by President Bush, we learned more today about the leadership of President Obama.
Ken Gude is the Associate Director of the International Rights and Responsibility Program at American Progress.