Brutal, Yes ‘Torture,’ Probably Not

National Journal

Is waterboarding torture? Of course it is, say Attorney General Eric Holder and many others who have confidently declared that the Bush administration’s lawyers were clearly wrong to approve as legal the CIA’s proposed use of waterboarding and nine other brutal interrogation methods.

I agree that waterboarding is torture as colloquially understood by many of us and that it should be banned.

But that does not mean that the CIA’s proposal — eventually endorsed by officials up to and including Present Bush — was illegal under the extremely narrow definition of "torture" that Congress wrote in 1994 when it made the practice a federal crime.

Indeed, the recently released report by Associate Deputy Attorney General David Margolis, the senior Justice Department expert on legal ethics, implicitly contradicts the strikingly superficial analysis underlying Holder’s assertions that waterboarding is illegal torture.

And while Margolis did not directly rule on the legality of the CIA’s interrogation methods, his 69-page analysis more strongly supports the view that the kind of waterboarding that the agency proposed in 2002 was not illegal torture.

You would hardly guess this from the media coverage after Justice released the Margolis report and related documents on February 19.

The report’s central conclusion absolved Jay Bybee and John Yoo — the Bush-appointed Justice Department lawyers who prepared two key "torture memos," both dated August 1, 2002 — of unethical conduct. Margolis firmly rejected a pervasively slanted, and unethically leaked, effort by Holder protégés in the Justice Department’s Office of Professional Responsibility to subject Bybee and Yoo to discipline from the bar. (The OPR is not to be confused with the Office of Legal Counsel, known as the OLC, which Bybee headed in 2002 with Yoo as a deputy.)

But Margolis did criticize Bybee and (especially) Yoo for "poor judgment" in portions of their memos. He also asserted that his decision "should not be viewed as an endorsement of the legal work that underlies" the torture memos.

The media have lavished attention on the "poor judgment" part but rushed right past the report’s implicit contradiction of both Holder’s waterboarding analysis and others’ assertions that the CIA-proposed techniques were clearly illegal. Reporters also paid little attention to Margolis’s expert evisceration of the OPR lawyers’ sometimes shoddy legal analysis, disregard for their office’s own rules, and shifting rationales in attacking Bybee and Yoo.

These aspects of the Margolis report — written by a widely respected career lawyer who has heard appeals from OPR targets for 17 years — are consequential.

They should shake the near-consensus in many circles that the entire Bush interrogation program was not only brutal and excessive, as I believe, but also illegal torture. And they pose a test for Holder and the congressional Democrats who have so fervently denounced the Bush team for employing waterboarding and other brutal methods.


If anybody violated an ethical standard, it would be whoever leaked a draft memo attacking Jay Bybee and John Yoo.


If these Democrats really want to make it clear that any future U.S. interrogators who use brutal techniques should be prosecuted, then they should propose tough, clear new legislative language — and take the political heat for it. Failure to do that will suggest that their attacks on Bush "torture" are driven more by political opportunism than by fidelity to law or human rights.

Let’s compare Holder’s January 15, 2009, Senate confirmation testimony and subsequent answers to written questions about waterboarding with relevant portions of the Margolis memo.

Holder: "If you look at the history of the use of that technique, used by the Khmer Rouge, used in the [Spanish] Inquisition, used by the Japanese, and prosecuted by us as war crimes — we prosecuted our own soldiers for using it in Vietnam… waterboarding is torture…. It is clear, and has historically been uncontroversial, that waterboarding is a form of torture."

Margolis: The "historical examples of ‘water torture’ " used by the OPR to condemn Bybee and Yoo, including those cited by Holder, "are distinguishable from the [CIA’s] proposed technique and were not analyzed under language similar to the torture statute."

In other words, Holder’s historical examples prove nothing. They cited tortures far more brutal than the technique that the CIA proposed in 2002. They also involved laws that predated the 1994 legislation and imposed broader criminal prohibitions.

And, as Margolis could have added, those not-very-relevant examples have been almost the only scrap of legal analysis that Holder has ever offered to support his condemnations of the CIA’s waterboarding.

Holder also dismissed, in May 2009 House testimony, the fact that thousands of military trainees have been waterboarded without suffering the "severe physical pain" or "prolonged mental harm" that would violate the anti-torture law. The training experience was "fundamentally different" from waterboarding a prisoner, he said.

Margolis, however, found the training experience "directly relevant" to the Bybee-Yoo determination "that the waterboard did not cause severe physical pain or suffering" (Margolis’s emphasis). He also found that despite the difference in the likely psychological effects on prisoners, the training experience would also "be relevant to the threshold question of whether everyone subjected to the waterboard suffers severe mental pain or suffering."

Margolis’s only criticism of Bybee and Yoo’s analysis of waterboarding was that its phrasing at one point could be read as erroneously suggesting that the absence of severe effects on trainees "alone virtually eliminated the need for an individual assessment" of how Abu Zubaydah, the first prisoner whom the CIA wanted to waterboard, might be affected. But this "was not critical to the approval of the techniques on Zubaydah," Margolis added, because another portion of the same memo noted that a CIA psychological assessment had already found that Zubaydah "would not experience any mental harm."

More broadly, nothing in the Margolis report says or implies that waterboarding or any other technique, with the limitations that the CIA proposed to Bybee and Yoo, was illegal. It must be noted that CIA operatives in the field later went far beyond those limitations — so far as to veer into illegal torture, in my view. (See "CIA Torture — and a Spanish Inquisition," NJ, 4/4/09, p. 12.)

Margolis arguably implied that the CIA’s policy on waterboarding may have been legal, when he wrote that "colloquial uses of the term ‘torture’ have little relevance to determining whether a particular technique violates the torture statute."

Then there is the striking, widely ignored fact that even the OPR found no ethical violation or poor judgment when it assessed the subsequent approval of techniques that included waterboarding by Steven Bradbury as head of the Office of Legal Counsel years after Bybee had taken a federal Appeals Court seat. This exoneration refutes Holder’s assertion that waterboarding is clearly illegal torture.

Indeed, no fewer than 14 other senior Bush administration lawyers eventually concurred in the Bybee-Yoo conclusion that the CIA-proposed waterboarding did not violate the torture law. The available evidence suggests that most of them did a more careful legal analysis than Holder has given any indication of doing.

It’s important to understand that there were two Bybee-Yoo torture memos that were dated August 1, 2002. The first, a general discussion of the torture ban, executive power, and possible defenses to prosecutions, was so flawed as to be repudiated by the Bush Justice Department in 2004. Not so the second memo, which was more important because it detailed the 10 CIA-proposed interrogation techniques and the reasons for approving them.

Margolis’s criticisms of this second memo were relatively minor: the above-noted point about needing an individualized psychological assessment, and a comment that the memo "would have been more complete" had it discussed how the CIA would keep detainees awake when using sleep deprivation.

Margolis’s only tough criticisms of Bybee and Yoo were aimed at their more general, less important memo.

He wrote — much as I did in June 2004 — that this first memo took an extraordinarily aggressive, "expansive view of executive authority and narrowly construed the torture statute while often failing to expose (much less refute) countervailing arguments and overstating the certainty of its conclusions." (See "The Torture Memos: Putting the President Above the Law," NJ, 6/12/04, p. 1835.)

Bybee and Yoo thus showed "poor judgment," Margolis wrote, and Yoo’s work "reflected his own extreme, albeit sincerely held, views of executive power."

At the same time, Margolis explained that the first memo’s flaws "were not likely to cause prejudice because the [more restrictive second] memo… approved specified techniques against a specific individual and advised that the advice would not necessarily apply if the facts changed."

Again, no hint that Margolis considered any of these techniques illegal.

His bottom line was that Bybee and Yoo did not "knowingly or recklessly provide incorrect legal advice or [act] in bad faith" and thus violated no ethical standard.

But somebody else did violate an ethical standard. That would be whoever leaked last year the conclusions of the confidential, now-overruled OPR draft attacking Bybee and Yoo. When will the attorney general order an internal investigation of that?

This article appeared in the Saturday, February 27, 2010 edition of National Journal.