[R-G] `Holy Hell' Over Torture Memos

[Sid Shniad]

`Holy Hell' Over Torture Memos 

Attorney General Eric Holder wants to release 
classified Bush-era interrogation memos. But U.S. 
intel officials are fiercely lobbying the White 
House to block him from moving forward. 

By Michael Isikoff 
Newsweek Web Exclusive 
<http://www.newsweek.com/id/192314> 
April 3, 2009 

A fierce internal battle within the White House over the 
disclosure of internal Justice Department interrogation memos 
is shaping up as a major test of the Obama administration's 
commitment to opening up government files about Bush-era 
counterterrorism policy. 

As reported by NEWSWEEK, the White House last month had 
accepted a recommendation from Attorney General Eric Holder 
to declassify and publicly release three 2005 memos that 
graphically describe harsh interrogation techniques approved 
for the CIA to use against Al Qaeda suspects. But after the 
story, U.S. intelligence officials, led by senior national- 
security aide John Brennan, mounted an intense campaign to 
get the decision reversed, according to a senior 
administration official familiar with the debate. "Holy hell 
has broken loose over this," said the official, who asked not 
to be identified because of political sensitivities. 

Brennan is a former senior CIA official who was once 
considered by Obama for agency director but withdrew his name 
late last year after public criticism that he was too close 
to past officials involved in Bush administration decisions. 
Brennan, who now oversees intelligence issues at the National 
Security Council, argued that release of the memos could 
embarrass foreign intelligence services who cooperated with 
the CIA, either by participating in overseas "extraordinary 
renditions" of high-level detainees or housing them in 
overseas "black site" prisons. 

Brennan succeeded in persuading CIA Director Leon Panetta to 
become "engaged" in his efforts to block release, according 
to the senior official. Their joint arguments stalled plans 
to declassify the memos even though White House counsel 
Gregory Craig had already signed off on Holder's 
recommendation that they should be disclosed, according to an 
official and another government source familiar with the 
debate. No final decision has been made, and it is likely 
Obama will have to resolve the matter, according to the 
sources who spoke to NEWSWEEK. 

The continued internal debate explains the Justice 
Department's decision late Thursday to ask a federal judge 
for another two-week delay (until April 16) to file a final 
response in a Freedom of Information Act lawsuit by the 
American Civil Liberties Union seeking the release of the 
memos. The ACLU agreed to the two- week delay only after 
Justice officials represented that "high-level Government 
officials will consider for possible release" the three 2005 
memos as well as another Aug. 1, 2002, memo on torture, that 
has long been sought by congressional committees and members 
of Congress, according to a motion filed by Justice lawyers 
with U.S. Judge Alvin K. Hellerstein in New York, who is 
overseeing the case. 

The 2002 memo, written by former Justice lawyers Jay Bybee 
and John Yoo, concluded that waterboarding and other harsh 
interrogation techniques could be used against Qaeda suspects 
without violating a federal law that prohibits torture. That 
memo was publicly withdrawn by the Justice Department in 2004 
after its existence became publicly known and sparked a 
public controversy. But a new set of Justice lawyers-led by 
Steven Bradbury, the newly installed chief of the 
department's Office of Legal Counsel-later secretly authored 
additional memos in the spring of 2005 that essentially 
approved the same techniques, permitting the agency to 
barrage terror suspects with a combination of physical and 
psychological tactics, including head-slapping and frigid 
temperatures, according to a 2007 New York Times account. 
Those memos concluded that the harsh interrogation techniques 
used by the CIA would not violate Geneva Conventions 
restrictions on "cruel, inhuman and degrading" treatment of 
prisoners. 

The internal controversy over the memos is viewed as 
especially significant in light of the larger debate over 
whether there should be "accountability" for Bush- era 
tactics in the war on terror, including calls in Congress for 
a "truth commission" to investigate the matter. Until now, 
that debate has been cramped by the fact that most of the key 
material-including those that describe precisely what tactics 
were used by the CIA in interrogations and what happened to 
high-level suspects in U.S. custody-has been classified, 
making it at least theoretically a federal crime for 
officials with direct knowledge of these issues to publicly 
discuss them. 

If the Justice memos were to be declassified, it would free 
up a host of former officials to talk about precisely what 
took place during White House and Justice Department meetings 
over the issue of interrogations. If the White House were to 
overrule Holder and side with Brennan and Panetta, it could 
essentially shut the door on attempts to have a full public 
airing of these issues, according to human- rights activists, 
lawyers and others who have followed the debate. 

"It is our goal to release [Office of Legal Counsel] opinions 
to the maximum extent possible, while still protecting 
national security information and ensuring robust executive 
branch decision-making," said Tracy Schmaler, a Justice 
Department spokeswoman, in a statement. "We continue to 
review OLC memos for possible release and to consult with the 
departments and agencies to whom OLC provides legal advice 
about the appropriate path forward with respect to other 
memos." 

Jameel Jaffer, an ACLU lawyer who is overseeing the 
litigation, said he still remains hopeful that the Justice 
Department will release the memos later this month. He added, 
"This is arguably the most important test thus far of the 
Obama administration's commitment to transparency."