Martin Lederman

Legal Adviser, Department of Justice

Now an associate professor of law at Georgetown University Law Center in Washington, D.C., Martin Lederman spent eight years as an attorney in the U.S. Department of Justice. There he was a senior adviser in the Department's Office of Legal Counsel - the powerful office whose legal opinions have the force of law throughout the government's executive branch. A long-time constitutional law specialist, Lederman is a frequent contributor to the online sites, Balkinization and Slate, where he often addresses U.S. detention and interrogation policies, the law, and the Constitution.

Martin Lederman on...

Interview: November 2, 2007
Edited Transcript

Has it surprised you that the issue of torture has apparently become such a big issue in the confirmation of Judge Mukasey. Why cannot he simply say that waterboarding is torture?

It doesn't surprise me in the slightest that it's become an issue in Judge Mukasey's hearings, because the torture issue has been central to much, not all, but much of the debate about the legal justifications and the lawfulness of the Bush Justice Department. And Judge Mukasey must have been aware that he was going to be asked about interrogation techniques, and about the infamous torture memos. So it doesn't surprise me at all.

Why could he not simply testify that waterboarding is torture? I think there are two reasons. I don't think the reason is because CIA officials, who have engaged in waterboarding, are in danger of any criminal culpability, not in the United States, anyway.

I don't think there is any prospect that the Department of Justice would ever prosecute anyone who had relied on OLC advice that the conduct they were engaging in was unlawful. It might be that the higher ups, the people within the Justice Department and the vice-president's office, for instance, and the White House Counsel's office, might be exposed to some criminal culpability. But even then, I think it's almost inconceivable that they would ever be prosecuted under the US system.

The reasons that he's reluctant to simply come out and say waterboarding is torture, like the sun rises in the east every morning, are two. The first is that it will mean, when the evidence comes out, that the President and his lawyers affirmed a violation of a criminal law, and a violation of the laws of war. And that's something that no administration wants its Attorney General to be articulating.

The more important reason, I suspect, however, is that although reportedly waterboarding is no longer being used by the Central Intelligence Agency, the legal rationale on which the OLC apparently authorized waterboarding might be a rationale that is being invoked to justify other techniques that are continuing to be used. And that rationale appears to be that as long as the physical suffering that is to be inflicted is temporary, does not have a long duration, that it does not constitute torture or cruel treatment, or cruel and inhuman and degrading treatment. And that legal reasoning might still be very much relevant to some of the techniques that the CIA is using.

Is there any question, in your mind, in the law and in the US tradition, that waterboarding is torture?

There is no question in my mind that the entire western world has, for centuries, and the United States has formally, for over a century, treated waterboarding as a paradigmatic type of torture. It's certainly that. It's certainly cruel treatment prohibited by the Geneva Conventions. There is no real argument to the contrary. There are only sort of clever lawyers arguments that are not meant to really persuade anyone that those who signed ratified, negotiated, enacted, and formerly implemented the Geneva Conventions and a federal torture statute would have ever, in their wildest dreams, imagined that waterboarding would not have been one of the prohibited practices.

Does it concern you that the focus on this one technique diminishes attention from all the other techniques that have been a part of US interrogation?

I think it's a double-edged sword. So yes, it does worry me that the idea that if we can't even agree on waterboarding, if we're only so focused on waterboarding, even if there comes to be a settlement on that question in the political branches, that will somehow be enough. And everyone else will sort of put to the side the other techniques that are being used, that are continuing to be used. Whereas waterboarding, from all we hear, is something that the CIA has now at least temporarily abandoned.

On the other hand, the fact that the administration and Judge Mukasey are unwilling even to say that waterboarding is torture and cruel treatment, I think crystallizes quite well, in the public's mind and that of the senators considering his nomination, how truly radical and extreme the administration's position has been with respect to the definitions of torture and cruel treatment more broadly. And in that respect, it's a helpful thing.

It definitely has been focusing the attention.

Absolutely. Everyone would agree, I think -- there is hardly a legal rule in the world that doesn't have some ambiguity and some difficult applications at the margins. And certainly, a term like cruel treatment, one could argue about certain sorts of techniques, and whether they might satisfy that standard. In the way the classic legal analogy is, a rule, a regulation saying no vehicles may be driven through the park. Well, does that include a stroller, does that include an ambulance? There are always hard cases at the margins. But a souped-up Corvette, being driven 100 miles an hour through the park, that is a vehicle. And waterboarding is torture, and it is cruel treatment.

And the fact that the administration thinks that even that is a hard question that can only be answered in secret by a bunch of highly trained lawyers, I think demonstrates, as well as anything could, how dramatically radical their legal analysis of these terms has been.

You're among those who have spent a lot of time looking at the documentary evidence that has been publicly released. Among the things that run through it is this fear of criminal liability. That seems to be there from the beginning.

There was a day between the time of the post Second World War era and the mid 1970s, when the intelligence agencies, in particular, were acting without very many legal constraints and without much fear of legal exposure or legal culpability. And that changed to a certain extent after the Church Committee hearings in the 1970s, and certain actions taken by Congress to put modest, but not insignificant legal constraints on the CIA and NSA and the other intelligence agencies. The fear, it seems to me, is partly criminal. And that's why we've seen these questions be so heavily subject to legal memoranda.

The CIA, after the 1970s, did an about face and became an extraordinarily legalistic institution. Everything is very, very heavily lawyered. They don't want to do anything in which they can, be accused -- not necessarily in a courtroom, but in the court of public opinion or in the legislature, as having been unlawful or criminal. They don't want to be seen as a lawless agency. And therefore CIA covert action, for instance, is always approved by lawyers in the Justice Department before it's engaged in.

When the White House and the vice-president's office were, in 2002, urging the CIA to engage in a detention room and interrogation program, something they apparently had not ever done before, and to use techniques that appeared on their face to violate several different legal restrictions. The CIA quite understandably said, "We're not going to do that, unless we are told -- we are given some assurance by lawyers within the Justice Department that this is lawful." Not only to protect against possible future criminal culpability within the United States, but more to give them political or moral absolution or cover, if and when the issue ever became subject or came to light.

Is that when the process starts that eventually results in the August 2002 opinions?

My understanding of this, just from published reports, is that once Abu Zubaydah was captured in 2002, and the CIA was unable to obtain as much intelligence from him as they -- as they wanted to, they were, then, encouraged by others within the administration to use more severe techniques to try to obtain that intelligence. And it's at that point that they, quite understandably balked, and said, "Wait a minute, this is really pushing the envelope. We'd like you to take a much more serious look to see whether this is legal. And we are not going to make a move until we get some formal authorization from the lawyers at the Office of Legal Counsel."

Were you aware that the vice-president's lawyer was apparently very involved in all of this decision making?

It was no secret, within the Executive Branch as a whole, certainly not within the Office of Legal Counsel, that David Addington was heavily involved in virtually all legal issues in the Executive Branch. By no means limited to the War on Terror or the possibility of war elsewhere such as in Iraq. The Vice President and his counsel were very much committed to a particular legal vision, and to making sure that the Bush administration abided by that, and acted in accordance with their legal principles. And therefore, they were very hands on in a way that even previously strong vice presidents, such as Vice President Gore, never were. Vice President Gore, obviously, had very strong ideas about certain topics, and he and his staff were at the table on many, many different issues, but this was a different order of things entirely.

You said the Vice President and his counsel had a strong legal vision. I assume you're mostly talking about the view of unfettered presidential executive power?

It's a very pro executive view of the separation of powers and of war powers, and of the president's powers that has two principle components. The first is what is often referred to as the unitary executive theory, which is mostly an idea about who controls what goes on within the Executive branch. The idea being that independence of actors within the Executive branch is something that's constitutionally dubious, according to this theory. And therefore it's a very centralized notion of what goes on. Both in terms of information flow and also decision-making responsibility.

And traditionally, the primary focus of this theory was the notion of independent agencies. They were thought to be constitutionally questionable, because they have independent powers under statutes to act without the president's oversight. And so that's one theme. And we've seen it played out very strongly within the Bush administration in the sense that they very, very strictly control the information flow that's coming out of the administration to Congress and elsewhere. And give a small group of people close to the Oval office, and ultimately the president, the authority to make all decisions. And they suppress dissent to a certain extent, more so than previous administrations.

That, in and of itself, is a theory I don't agree with, but it's certainly been something of discussion in the legal world for the last couple of decades. But what they've joined that with is a much more pronounced and much more radical position, which is that the Congress does not have the authority, even by enacting statutes, or the Senate by ratifying treaties, to impose substantive restrictions on the President's powers. So it's not a matter of who makes the decisions within the Executive branch. It's also that statutes and treaties are much less effective at constraining substantively what the President can do, particularly when it comes to the president's war powers, his powers as Commander-in-Chief.

The Vice President is strongly of the belief that statutory limits on the President, going back to the Foreign Intelligence Surveillance Act of 1978, and the Boland amendments that limited aid to the contras in the mid 1980s, and many other regulations of war, whether it be when troops must be withdrawn, or the sorts of interrogation techniques, or surveillance that can be used by the president, that these are constitutionally dubious, because the president has some preclusive power. Not only an independent power to act, according to his discretion in wartime, but a power that's preclusive of statutory and treaty-based limitations. And that's the truly innovative and quite radical view that is raised with respect to the torture and detention issues.

So the most important thing to realize about this, about this legal theory, is how if one takes it seriously, how truly broad it is, and what it would implicate. The theory would mean that an entire edifice of 20th century law -- Geneva and Hague Conventions, the Convention Against Torture, the Torture Statute, the Foreign Intelligence Surveillance Act, the War Crimes Act, the Uniform Code of Military Justice and many other quite well established and non-controversial limits on war authority that have been ratified and enacted since the turn of the century -- would be called into question. Whenever the president thought that those legal norms impinged on the way he thinks it is the best means of fighting the enemy. And so it's a theory - whether one thinks it's right or wrong - that is potentially quite groundbreaking, and quite significant in terms of how it would rebalance the powers between the branches of the federal government.

And what is the power of the Office of Legal Counsel?

The Office of Legal Counsel is an important office, because in theory, it's the one place in the Executive branch that can and should tell the president 'no'. It's the one place in the Executive branch that is supposed to be, in some sense, giving the president advice. Not just as to what the best policies might be, but as to what the legal limits on the president's actions are. The president has a constitutional obligation to faithfully execute the law, under Article 2 of the Constitution.

Unlike a court, OLC has a second function, which is after it says no, it is perfectly legitimate and permissible for OLC to work with the political actors to try to come up with a lawful means of achieving the president's goals. Perhaps not the full way that he would have preferred, but to come -- but to canvas the law, to be creative, and come up with ways that are faithful to the law. That allow the president to do as much as he can to further what he thinks the best policy is. So OLC has both a law interpretive function and a function of assisting the president. But both of them fall under the general obligation to assist the president in faithfully executing the law.

In the opinions that were created regarding detention and interrogation policies did that get twisted somehow?

When OLC is opining about domestic law issues, it has traditionally -- not uniformly but in the vast majority of cases - OLC has always seen its role as being a straight shooter, of telling the president even things he doesn't want to hear. And this helps presidents, because if they end up acting lawlessly, it hurts them from both a political and a policy perspective as well as a constitutional perspective. And so typically, most administrations learn early on that they're very well served by an OLC that will give them the straight and best answer on what the law provides. And that is generally what happens when it comes to what I'll call domestic questions.

On issues of national security and war, however, OLC has purported through the years to also be giving the best legal answers, what it views as the best view of the law to the president. But I think it would be a bit naive not to admit that from time to time, under the stresses of war in national security emergencies, OLC has tended to push more toward the pro-presidential side in the advice that it has given, in the same way that previous attorneys general did before OLC was created.

You can come up with a handful of occasions in American history, in which attorneys general and the Office of Legal Counsel instead of trying to provide the best legal answer, have tried to provide any legal answer that might be rational or reasonable or feasible, so as to allow the president to do what he wants to do. It's, I think, a very important and pressing question, whether that's the proper role for the Office of Legal Counsel; whether the president is faithfully executing the law when he's engaged in conduct that he knows is not legal under the best view of the law, but might be legal under a unorthodox view of the law.

In this administration, President Bush has, by all accounts, been quite forthright in that he's asked his lawyers not to give him the best view of the law, but instead, to push the envelope. The metaphor that they've used is to go as close to the legal line as possible without going over. So the metaphor they've come up with is to "get chalk on one's spikes." This was the message that went out from the White House. They want not the view of the law that an objective observer might say was the best. But the view of the law within broad limits of reasonableness that would give the president the most authority to do what he thinks needs to be done in the conflict with al Qaeda.

It's a very difficult and interesting question, whether that's a proper role for OLC. But what seems uncontroverted is that the OLC memos dealing with detention and interrogation and torture were written with that sort of a standard in mind. Not to give the president the best view of the law, but instead, to give him the view of the law that would best advance the goals that he was seeking to advance.

I think it's fair to say that the law was driven by policy goals. That's not unusual in and of itself. What is a bit more unusual, and much more controversial, and much more troubling, is the idea that the legal analysis should be so heavily pushed in the direction of affirming the president's power to engage in those policy decisions. And that even when the law clearly pointed in the other direction, that if OLC could come up with any theory, no matter how extreme, any legal theory at all, that that would be enough. It's always the case that the president says, "This is what I want to do, can I do it? Do you have a legal theory that will allow me to do it?" What's unusual about this situation is that OLC was willing to stretch the law so dramatically in the service of what I think was sincerely believed to be important national policy objectives.

If something was on its face illegal, violated the prohibition against cruel treatment in common Article 3 of the Geneva Conventions, why wasn't that the end of the story?

I don't think that the lawyers involved in the writing and discussion of these memoranda believed that they were authorizing things that were, in fact, unlawful. I think, instead, they believed that the law was much more malleable than anyone would have imagined, and that they had the authority, sometimes through creative interpretation of the law. Other times, and more importantly, through a constitutional trump or override theory, to read the law in ways that would have come as a complete surprise to the other branches and to the public at large.

I don't think that they thought they were acting lawlessly. I think they thought that the proper constitutional settlement is that the president has a power, under the constitution, to engage in his own law making that would supersede that that appears in treaties and in statutes.

What is your opinion of that reading of the law?

I think that that's a quite extreme view of presidential power, one that basically eliminates all checks and balances of the other branches, especially the legislature. And it's one that would, if taken seriously, as it was taken seriously by this administration, would mean a quite dramatic shift in the power balance between the president and Congress with respect to, at the very least, war powers.

We were getting ready to talk about the infamous August 2002 so-called torture memo. You've written a lot about that.

The first thing that I noted about it was that it was an awfully odd question for OLC to be answering, interpreting the Torture Act, because there were several other obvious legal restrictions that one would bump up against, long before you would come to the Torture Act, which is getting at the worst of the worst. And so you'd think, why are they construing the Torture Act, when even if something comes close to the line without going over, it's still going to violate other laws, and not be an option for use?

And so what I figured out, just by the structure of the opinion and others, is that first of all, several of those other laws, the Uniform Code of Military Justice being most prominent among them, applied to the military, but not to the Central Intelligence Agency. And so it became clear that this was a memo that was prompted by requests from the CIA, who were not subject to certain of those other laws. But they would still be subject, apparently, to the Geneva Conventions and to a basic obligation, not to engage in cruel, and inhuman and degrading treatment under the convention against torture itself. And so I had figured there must be other memos out there that were somehow getting around those prohibitions as well.
The torture memo did three basic things. The first thing was to construe the terms of the Torture Statute very narrowly in a way that was later understood by everyone who read the memo to be completely unreasonable, to narrowly define torture almost into non-existence. The second thing it did was to say was that even if a particular technique does constitute torture, there would be certain defenses that someone could use in a possible criminal prosecution against torture.

And it raised three defenses, in particular. The first was necessity, arguing that if you had a really good reason, you know, necessity is a traditional criminal defense that applies to company crimes that, basically says, if there is an incredibly compelling reason, you might be absolved from the crime if you can establish that reason in your defense. The second was called self-defense, which the memo read to mean, not the defense of the interrogator, obviously, but the defense of nation, defense that it made up out of whole cloth, and said that if the nation's fate was at stake, you could engage in torture.

Both of those defenses were quickly repudiated once they came to light. The Department of Justice said, as the United States had said for many decades, no, that's wrong. There are no defenses to torture. Wartime exigency and necessity is not a defense. Self defense or defense of nation is not an excuse to engage in torture.

The third defense and the third category of things that the memo did, was to my mind the most interesting; which was to say, even though we've defined torture almost out of existence, whether or not we're right about that, even if something does constitute torture, the commander in chief of the US Armed Forces can authorize officials to engage in torture because to the extent the Torture Act does inhibit the president from doing what he thinks is necessary to fight al Qaeda, the Torture Act is unconstitutional. The commander in chief has an override or a trump. He can authorize or order someone to engage in torture, and the Constitution gives him the right to do that, notwithstanding the statute that Congress had enacted. So that was the third and I think the most important of the things that the torture memo was doing.

Essentially saying Congress had no standing.

Essentially saying that notwithstanding the fact that the president had negotiated the Torture Convention, the Senate had ratified it, and Congress had, thereafter, passed -- I believe unanimously passed -- a statute signed by a previous president, absolutely and categorically prohibiting torture outside the United States. That notwithstanding all of those things, a president could, under his powers as commander in chief, decide that torture has to be used in a particular case, and he would have the constitutional authority to do that.

It's been reported that the Vice President's counsel had a lot to do with drafting that third piece that you've just described.

I don't know whether the Vice President's office -- whether and to what extent the Vice President's office was involved in the actual drafting of the commander in chief override section of the torture memo. What we do know is that the Vice President and his counsel strongly believe in that theory and that it is a theory that they were all too eager to see the Department of Justice articulate on paper, and to advance in the torture memo and several other contexts.

Once this torture memo has been issued, in secret at the time, it's a green light.

The purpose of the torture memo was to give the CIA absolute assurance that no matter what it did, in terms of interrogation, that it would never be subject to any criminal culpability. None of its agents would ever be exposed to criminal culpability under domestic law, putting aside foreign tribunals. And that's why it's a "belt and suspenders plus" sort of memo. Right? We're going to define torture very narrowly, and if that's not enough, we're going to make up these defenses for you. Oh, and if that's not enough, the ultimate trump card is the president can always order you to do whatever he wants you to do in wartime, and you can't be legally liable for it.

So the memo gave the CIA legal assurances that it had asked for. It also gave the White House what it was asking for?

I think the White House -- the president -- was seeking legal advice that gave him the constitutional power to ignore constraints imposed by statute and treaty that had long been in place, that he thought got in the way of the best possible policies in terms of the fight with al Qaeda.

This memo became the legal reasoning for all US interrogations, not just the CIA?

The memo was originally written with the CIA in mind. The CIA was, as I said, subject to fewer statutory restrictions than the military to begin with, and that's why the torture statute in particular has played such a prominent role in the torture memo. Later in 2002 and then again much more prominently in the spring of 2003, the Pentagon began wondering whether it could engage in these sorts of techniques. Now, from the Pentagon's perspective, the problem was not only the torture statute, but also the Uniform Code of Military Justice and other statutes. The UCMJ prohibits military employees and officers from engaging in cruelty and maltreatment and assault and threats, in addition to torture.

And so the military found itself with even more legal hurdles than the CIA did. But the reasoning of the OLC opinion from 2002 was then employed in 2003 to basically give a Commander-in-Chief override as to all these other military base statutes as well, and to lead to advice that the Pentagon could ignore all of its legal restrictions as well in interrogation.

There had been some criticism within the Pentagon of interrogation policies, as they were playing out, particularly in Guantanamo. Alberto Mora, as we know, took the lead on that, so Secretary Rumsfeld put a halt to some practices temporarily and set up the so-called Working Group.

In November of 2002, the general counsel of the Pentagon, Jim Haynes, and the Secretary of Defense Donald Rumsfeld, approved severe techniques to be used on one detainee at Guantanamo, al Qahtani, and apparently those techniques were being used. And when that came to light, the career military folks within the FBI, looked at this and said, "Goodness, this looks like it clearly violates several different statutes and international law norms and treaties."

And when they raised a fuss about this, eventually in January of 2003, Secretary Rumsfeld called a halt to that interrogation of that detainee at Guantanamo, and established a Working Group within the Pentagon to look into the question of what the legal limits were for military officials engaging in coercive interrogation techniques. And this Working Group consisted of folks from all of the armed services. And they started developing what they understood to be an analysis of those laws, which were quite restrictive. The Uniform Code of Military Justice prohibits cruelty, maltreatment, assaults and threats. The Torture Statute prohibits torture. The Geneva Conventions prohibit cruel treatment and the like.

And at some point, the Office of Legal Counsel once again got involved in this. And John Yoo, a deputy to the assistant Attorney General, issued a draft memorandum, which was distributed to this Working Group that basically said that all of these legal restrictions were not quite relevant, because the President has a constitutional authority to override them. According to what we know from the JAGs -- afterwards, the JAGs saw this OLC advice and were aghast. They thought it was both wrong and that following it would be morally, legally, and pragmatically disastrous. And they said as much to the General Counsel and to the Secretary of Defense and urged them strongly to reject the OLC legal analysis.

You've called the JAGs, the Judge Advocates General, during this process the heroes of the story.

Heroes, but it shows how our frame has changed so much in this administration. They were heroes just for doing their ordinary jobs, for basically reading the law in the way they always had, in a reasonable way. And keeping in mind what a radical reading of the law would mean, not only for the United States' legal obligations, but for the safety of US troops. Going forward, both uniformed and non-uniformed troops would be put in quite considerable danger, if the world were to come to agree with those sorts of legal interpretations that were coming out of the Justice Department.

So, you know, heroism in the ordinary. The ordinary became heroic, when the JAGs simply were saying the ordinary, the reasonable, the understandable interpretations have been good enough for decades. Why aren't they good enough now? Let's stick to them. But the Justice Department said no, in fact, the president has greater constitutional authority to supersede these treaties and statutes. And the Pentagon seemed inclined to go with the Justice Department rather than with the JAGs, who were offering their advice to stay with the tried and true ways of interrogating suspects.

The debate was essentially cut off when an opinion from the Justice Department was issued sometime in mid-March?

There were earlier versions of this Justice Department memorandum, a draft opinion, draft memorandum, that was distributed that engendered a great deal of resistance from the JAGs and others within this Working Group at the Pentagon. And they urged that it not be adopted. But the Pentagon general counsel, Jim Haynes, said that when OLC speaks, it speaks for the administration and for the President on matters of legal interpretation, which is true, unless the Attorney General or the President overrules OLC. That's true, and that the Working Group report would reflect these quite extreme legal views. And a draft of the Working Group report indeed did reflect these views.

The Working Group report was a somewhat schizophrenic document. One half of it explained how all of these legal limitations put quite severe constraints on what one could do in interrogations, but after that, it said that the commander in chief had the power to override all of those restrictions, and therefore, at the end of the draft Working Group report, all sorts of coercive interrogation techniques were recommended. Many of the people in the Working Group were aghast at this, and they strongly urged the Secretary of Defense and the general counsel of the Pentagon not to go down that road. And they were told, apparently, not to worry about it, that the whole project had basically been scuttled, and that the Pentagon was coming up with a different plan.

Unbeknownst to many of the members of the Working Group, without telling many of the members of the Working Group, the Pentagon went ahead and actually promulgated a final draft of the Working Group report in early April 2003 that contained all of the Justice Department's extreme legal views, and recommended the use of extreme interrogation techniques. And so the secret Working Group report, secret because it wasn't even known to the members of the Working Group, was issued. That was basically a mirror image of the legal advice that the Office of Legal Counsel had promulgated several weeks previously.

And yet, it was briefed to General Miller, who was at the time the commander at Guantanamo.

As far as the members of the Working Group know, their report never gets finalized. And they are told instead, in mid-April, Secretary Rumsfeld issues a memorandum concerning interrogation techniques at Guantanamo that is relatively benign and modest, and quite reasonable. And seems by all accounts within the military, to be something of a retreat back to the traditional ways, with a few extra techniques built in, but protections against abuse built in. And as far as the Working Group is concerned, that seems to have been a reasonable compromise.

Unbeknownst to at least several members of the Working Group, in early April a final version of the report had, in fact, been promulgated, but they were not told about it. And that version of the report, the secret, real Pentagon rules for interrogation, was promulgated in early April, 2003, based largely on this mid-March OLC memo. And according to Jane Mayer in The New Yorker, this Working Group report was briefed to General Miller. So he was told of these extreme recommendations, and of these extreme views of presidential prerogative to supersede the Geneva Conventions, the Torture Statute, and the Uniform Code of Military Justice.
At some point in March and April of 2003, the Working Group process became effectively a charade. That a report was issued in the name of people who never saw the final report, who were never told about the final report, and was secretly briefed to those who would be in charge of interrogation, not only at Guantanamo, but in Iraq. And it was based on an OLC memorandum taking extreme views that had been strongly resisted by the JAGs within the Working Group.

Is this symptomatic of the whole story that you and I have been discussing today?

What happened with respect to the Working Group report, and the March 2003 memorandum -- which has still not been made public, it was just last week provided to certain members of Congress, here in late 2007 -- is reflective of a couple of things that are very prominent in the Bush administration's strategy for dealing with the War on Terror and with interrogation policy, in particular.

First, is that it takes a very extreme view of the President's power to engage in conduct that has widely and quite reasonably been viewed as unlawful in the past. Secondly, it does so in secret, so that people within the Executive Branch, who might dissent from this view, are not told of it. And the Congress is not let in on it, let alone the public.

If it were only the case that the president was pushing a rather extreme view of executive power, that would be one thing. Presidents have pushed extreme views of their own powers in the past, and have been more or less successful at having those views adopted by the other branches, and by the public as a whole. But that was combined with an extreme degree of secrecy. Also not surprising, because this involved intelligence activities.

But what it meant was that the administration was taking an extreme view of its own powers, and implementing an extreme view of its own powers. And that it was doing so in secret, unbeknownst to the courts, to the Congress and to the public, and even to many people within the Executive Branch. And so it was an extreme power grab combined with a complete lack of transparency, and therefore, effectively cutting out all checks and balances that the Constitution contemplates being used as a corrective against one branch or the other, taking too much power for itself.

Taking the interrogation tactics, themselves, that we know about, in addition to waterboarding, the sleep deprivation, manipulation of climate temperature, all of those kinds of things, do you believe that those tactics, taken together, are torture?

Waterboarding, hypothermia, severe temperature extremes over long periods of time, along with forced nudity, severe sleep deprivation, severe and extended prolonged sensory deprivation, certain forms of mild assaults, slaps to the stomach and to the head and threats to the detainee and his family, threats of violence to the detainee and his family. These techniques -- some of them are clearly prohibited torture, but even where there might be some debate about whether, and under what circumstances, some of them are torture, they're all cruel treatment prohibited by Common Article 3 of the Geneva Conventions.

And until this administration, one would have thought that they are also conduct that shocks the conscious, which under the torture convention, is conduct that is also prohibited on that ground. There are several different legal restrictions on the use of these techniques. But the three principle ones are the prohibition on torture, the prohibition on cruel treatment, and the prohibition on cruel and inhuman and degrading treatment, which is interpreted to mean conduct that shocks the conscious under due process standards.

Whether or not any particular one of these techniques, when employed by the CIA constitutes torture, I think it's fairly certain that they all are and are intended to be treatment that is cruel, deliberately cruel, for a quite compelling purpose, which is to obtain intelligence information.

At times certain of these techniques are certainly torture, but even when they're not, they're cruel treatment that is prohibited by the Geneva Conventions.

Could their authorization and application add up to war crimes?

The prohibition in the Geneva Conventions against cruel treatment turns out to have been probably the most important of the legal restrictions that the Bush administration had to deal with. It dealt with this problem originally in February of 2002, when President Bush declared, for the United States, that this provision of the Geneva Conventions, Common Article 3, categorically did not apply to the armed conflict with al Qaeda. Therefore, the ban on cruel treatment, according to the president, was inapplicable to our treatment of suspected al Qaeda detainees.

In the summer of 2006, the Supreme Court decided the case of Hamdan versus Rumsfeld, in which the court held that Common Article 3 of the Geneva Conventions indeed does apply to our conflict with al Qaeda. The case itself involved questions about military commissions, but the implications of the Court's holding on Common Article 3 were quite dramatic.

Once the Court had effectively held that the prohibition in Common Article 3 on cruel treatment applied to al Qaeda, what this meant was that the CIA had been engaging in violations of the federal War Crimes Act. Why? Because the federal War Crimes Act incorporated any violations of Common Article 3. And it was only by saying that Common Article 3 didn't apply to al Qaeda, that the president was able to circumvent this restriction.

Once the court held that Common Article 3 applies, it meant that the cruel treatment that the CIA had been using against al Qaeda detainees, constituted violations of the federal War Crimes Act. And that is what prompted the President to propose amendments to the War Crimes Act, so that the CIA techniques would no longer be included within those prohibitions.

So the Military Commissions Act, enacted in October of 2006, redefined cruel treatment for purposes of the War Crimes Act, for purposes of criminal sanction, but only for purposes of criminal sanction, in a way that arguably is crafted to dance around the techniques that the CIA has reportedly been using. And so exposure under the War Crimes Act is now much less of a threat to the CIA's techniques than it was before the Military Commission's Act was used.

Now, it still constitutes cruel treatment that the Geneva Conventions prohibits, but the criminal sanctions that were attached to that were largely eliminated by the Military Commissions Act.

Once the Bush administration has adopted the view that these enhanced interrogation techniques are neither torture nor cruel treatment prohibited by statutes and treaties, this has fairly significant ramifications not only for our treatment of al Qaeda detainees, but for the treatment of US personnel overseas in future years, in future conflicts, and in this one. In particular, non-uniformed personnel such as CIA officers, intelligence officers, and the like, contractors, if captured by an enemy, and if treated in the way we're treating al Qaeda personnel, if subjected to these enhanced interrogation techniques, it would now be the case that under the Bush administration's view, that would be completely lawful. There would be nothing wrong with waterboarding US personnel, with subjecting them to severe sleep and sensory deprivation, to making threats against their family. It wouldn't be torture and it wouldn't be cruel treatment.

These legal rulings, which were developed and implemented with an eye towards US treatment of al Qaeda detainees, what's good for the goose is good for the gander. And when non-uniformed US personnel are hereafter captured, they won't be protected by prohibitions on torture and cruel treatment if the Bush administration's views of those standards are allowed to persist.