Will Obama Block Release of Key Bush-Era Torture Memos?

As has been pointed out by several diligent journalists, human rights lawyers and critics, President Obama has continued--and continued defending--some of the Bush administration's most repressive "War on Terror" policies, although Obama prefers to not use that term anymore. On several occasions, Obama has invoked the "state secrets" doctrine, including to argue that a lawsuit filed against the Bush administration's warrantless wiretapping should be thrown out. As former constitutional lawyer turned Salon.com columnist Glen Greenwald wrote, the move "demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used."

Meanwhile, the White House is continuing to defend its use of the US prison at Bagram in Afghanistan. On Tuesday, White House spokesperson Robert Gibbs was confronted about this by the great Helen Thomas:

Q Why is the President blocking habeas corpus from prisoners at Bagram? I thought he taught constitutional law. And these prisoners have been there --

MR. GIBBS: You're incorrect that he taught on constitutional law.

Q -- for many years with no due process.

MR. GIBBS: Well, there are several issues relating to that that have to do differently than in some places than others, particularly because you have detainees in an active theater of war. There's a review that's pending of court cases and decisions, and we want to ensure -- we want to ensure protection and security of the American people as well as rights that might be afforded.

Q Are you saying these people in prison are a threat to us?

MR. GIBBS: Well, I think that part of that is the determination based on our detainee policy that the President announced on the 21st of January, that that's part of that review, yes.

Chuck.

Chuck then changed the subject. (David Swanson has a humorous take on this back and forth at AfterDowningStreet, while Liliana Segura takes it on at AlterNet.)

Meanwhile, the Wall Street Journal is reporting today that "The Obama administration is leaning toward keeping secret some graphic details of tactics allowed in Central Intelligence Agency interrogations, despite a push by some top officials to make the information public." The 2005 "Bradbury memos represent an effort by the Bush administration to keep the CIA program of 'enhanced' interrogations of certain detainees on a legal footing after the Bush administration in late 2004 withdrew earlier Justice Department memos on interrogation."

The ACLU, which is suing the Justice Department for the release of the three memos, which were authored by Steven Bradbury, acting head of the Department of Justice's Office of Legal Counsel (OLC) from 2005 to 2009, as such:

The memos reportedly provided legal justification for the CIA's use of enhanced interrogation methods that amounted to torture. And they also reportedly provided legal cover for the CIA's interrogation methods in anticipation of Congress's expected effort to outlaw "cruel, inhuman, or degrading treatment," which it did in the Detainee Treatment Act of 2005, passed several months after Bradbury issued the memos.

According to the WSJ:

Among the details in the still-classified memos is approval for a technique in which a prisoner's head could be struck against a wall as long as the head was being held and the force of the blow was controlled by the interrogator, according to people familiar with the memos. Another approved tactic was waterboarding, or simulated drowning.

A decision to keep secret key parts of the three 2005 memos outlining legal guidance on CIA interrogations would anger some Obama supporters who have pushed him to unveil now-abandoned Bush-era tactics. It would also go against the views of Attorney General Eric Holder and White House Counsel Greg Craig, people familiar with the matter said.

Top CIA officials have spoken out strongly against a full release, saying it would undermine the agency's credibility with foreign intelligence services and hurt the agency's work force, people involved in the discussions said. However, Director of National Intelligence Dennis Blair favors releasing the information, current and former senior administration officials said.

Human-rights groups and many in the administration have called the techniques torture.

On Thursday, the Obama administration faces a deadline in the suit brought by the ACLU, which originally asked for the public release of the 2005 Bradbury memos. The WSJ paints a picture of the Justice Department on one side, arguing for greater disclosure and the CIA on the other, arguing against release of the documents. "In the middle," the paper says, "is deputy national-security adviser John Brennan, a former CIA official, who has generally sided with the CIA."

Remember, this is the John Brennan who was described by Greenwald as as "an ardent supporter of torture and one of the most emphatic advocates of FISA expansions and telecom immunity." It is also the Brennan who described the CIA's extraordinary rendition program as an absolutely vital tool. Here is the CIA's case to Obama in a nutshell:

"Intelligence officials also believe that making the techniques [described in the Bradbury memos] public would give al Qaeda a propaganda tool just as the administration is stepping up its fight against the terrorist group in Afghanistan and Pakistan. Some former administration officials have also argued that releasing all the memos could help terrorists train to endure the most extreme interrogation techniques."

On the other side is the Justice Department, which has been at the frontline in Obama's use of state secrets. But, according to the WSJ, in this case it has "argued aggressively for releasing operational details. Justice Department lawyers argue that the agency shouldn't be in a position of defending practices the new administration has disavowed. They say releasing the documents would help fulfill the president's promise of greater transparency." The paper indicates that it is possible the Obama administration will release some skeletal details of the memos without fully disclosing the contents, which seems to be the position of CIA director Leon Panetta.

On April 2, the original deadline to release the memos, the Justice Department asked for a two week delay to decide whether to release the memos. The ACLU "reluctantly consented" in return for the administration agreeing to review releasing "another key memo, authored by Jay Bybee, Assistant Attorney General for the OLC from November 2001 to March 2003. (Bybee is now a federal appeals court judge for the 9th Circuit, and the subject of an ethics probe by the DOJ's Office of Professional Responsibility.) The Bybee memo, like the Bradbury memos, is critical to understanding the foundations of President Bush's torture program."

The ACLU notes:

As important as these memos are, they will likely not tell the full story of the treatment of detainees in secret CIA prisons and elsewhere. That is why it's crucial that Congress appoint a select committee with subpoena power and the necessary resources to fully investigate Bush administration abuses. And that is why the Justice Department should appoint a Special Prosecutor to investigate the abuses and, if the facts warrant, initiate prosecutions. In order for us to begin fixing the damage done to this country by the last administration, Congress must fully investigate what took place and show the American public that nobody is above the law by holding those responsible accountable for their actions.