MARGARET WARNER: In the U.S. and around the world, there was angry reaction today to the Obama administration’s decision to release top-secret memos authorizing extreme interrogation techniques during the Bush administration and to the decision not to prosecute any CIA operatives who used those techniques.
Former CIA Director Michael Hayden and former Attorney General Michael Mukasey, in a Wall Street Journal op-ed piece, said the effect of publishing the Justice Department memos, quote, “will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past and that we came sorely to regret on September 11, 2001.”
But some civil liberties groups, and voices in the Muslim world, criticized the decision not to prosecute the CIA agents who relied on those memos. The International Commission of Jurists in Geneva said, “Without holding to account the authors of a policy of torture and those executing it, there cannot be a return to the rule of law.”
For more now, we go to Ari Shapiro, justice correspondent for National Public Radio.
And, Ari, welcome.
ARI SHAPIRO, National Public Radio: Thanks for having me.
MARGARET WARNER: All right, what’s the origination of these memos? And how did they come to light now?
ARI SHAPIRO: Well, the ACLU had filed a Freedom of Information Act lawsuit about five years ago asking for these memos. Yesterday was a court deadline, and the Obama administration decided to release them, under some pressure, I might add, from current and former CIA officials not to release them.
So we have four memos. One is from 2002; the other three are from 2005. They’ve all since been revoked. And as you’ve said, they go into some detail about the kinds of extreme interrogation tactics that were allowed.
MARGARET WARNER: So give us examples of the kind of things that were allowed.
ARI SHAPIRO: Well, these memos literally have a list, one, two, three, four, five. And it ranges from nudity, to food deprivation, to dousing with water, to putting one detainee who was afraid of insects in a confined box with a bug to try to exploit that fear. And then, of course, there was waterboarding, which they describe as the most traumatic of the CIA interrogation techniques.
Justification for tactics
MARGARET WARNER: So what was the language like in these memos, in terms of the justification? I mean, they were -- the Justice Department attorneys were being asked, is this allowable? Is this allowable? What was the reasoning by saying they were?
ARI SHAPIRO: Well, first, it's incredibly detailed. On each interrogation tactic, they go just meticulously into detail about -- for example, slamming a detainee against a wall was one permissible tactic. And they say, depending on the extent of the detainee's lack of cooperation, he may be walled one time during an interrogation session, one impact with the wall, or many times, perhaps 20 or 30 consecutively, they say.
When they talk about pouring water over a detainee, they say, if the water is this temperature, here's the maximum number of minutes you can douse him. If the water is colder, here's the maximum number of minutes.
And then they go into great detail about whether these constitute cruel -- whether they constitute extreme, severe pain and suffering, mental or physical pain and suffering.
MARGARET WARNER: And that's the definition of torture?
ARI SHAPIRO: And that's the definition of torture in the law. And so one memo, in fact, says waterboarding constitutes a threat of imminent death, but they say that, because the CIA has concluded that the mental suffering ends as soon as the waterboarding ends, this same memo says the use of these procedures would not constitute torture within the meaning of the statute.
MARGARET WARNER: Now, other than the justification or legal reasoning, is there anything new in the memos about actually what went on or how often it was used?
ARI SHAPIRO: Well, the thing about putting one detainee, Abu Zubaydah, in a box with an insect is pretty remarkable. The CIA wanted to put him in a box and tell him that it was a stinging, poisonous insect, but, in fact, just put him in with a harmless caterpillar.
There's a lot of detail about the number of times these tactics were used, how they were used. In one footnote about waterboarding, for example, it says that even though there was very specific instruction about the amount of water and the duration of time that people could be waterboarded, there were instances where CIA officials went beyond that.
MARGARET WARNER: So they did say there are cases like that?
ARI SHAPIRO: Indeed, yes.
Decision not to prosecute
MARGARET WARNER: Now, explain what President Obama said and Attorney General Eric Holder said in announcing that, at the same time, none of the CIA agents who relied on these memos would be prosecuted.
ARI SHAPIRO: Well, President Obama called it a dark and painful chapter in our nation's history, and he said nothing will be gained by spending our time and energy laying blame for the past.
The message from President Obama, CIA Director Leon Panetta, Attorney General Holder, broadly speaking, was, as you, the CIA, defend the country, we will defend you.
They said people who relied in good faith on this legal guidance should not be prosecuted for that, but they did not say anything about people who went beyond the legal guidance in the memo or the people who wrote the memos at the Justice Department in the first place.
MARGARET WARNER: Now, President Obama had to settle quite an internal dispute over how to handle all of this.
ARI SHAPIRO: That's right. Leon Panetta and other CIA officials were very hesitant about releasing these documents. Many argued for them not to be released at all. As you mentioned, former CIA Director Michael Hayden said it makes America weaker to release these memos.
But the fact that these memos are released with so few redactions, we can really read them through almost beginning to end, virtually uninterrupted, shows that at the end of the day the CIA lost that battle.
And I think it's safe to say that President Obama's statement that we're going to get your backs, we're going to protect you, CIA officials, is part of a way of trying to mitigate the damage that he might have brought on from going against the CIA's wishes there.
Calls for investigation
MARGARET WARNER: But in releasing them, was he essentially siding with the attorney general?
ARI SHAPIRO: Yes. Yes, I think so. Eric Holder had been arguing vigorously for more openness, for these documents to come out. And the fact that there are as few redactions as there are, I think, shows that Attorney General Holder won that argument.
MARGARET WARNER: Now, in what the president said, in terms of -- and Eric Holder said, in terms of the exclusion from prosecution, the attorneys who actually -- the Justice Department officials who authored these memos are not protected, is that right? Are they still potentially at risk here?
ARI SHAPIRO: They talked about people who followed the Justice Department's legal guidance. They did not talk about the people who gave that legal guidance.
There is an ongoing investigation that the Justice Department's Office of Professional Responsibility is doing right now. That investigation is looking at whether the people who authored these memos violated professional standards.
And one of those authors, Jay Bybee, is currently a federal judge on the Ninth Circuit Appeals Court in California with life tenure. If that finding comes out that he violated professional ethics, he could be in trouble, at risk of losing his job, perhaps.
MARGARET WARNER: And there are also calls on the Hill for more investigation.
ARI SHAPIRO: That's right, calls for a truth commission, both on the Senate side and the House side, and these memos made those calls even louder.
MARGARET WARNER: Ari Shapiro, NPR, thank you so much.
ARI SHAPIRO: Great to be with you.