By Jason Ralph
I’ve been rereading Jack Goldsmith’s book The Terror Presidency for a paper I’m writing on the anti-torture norm. He offers on p.165 an explanation of how the OLC could have written the August 2002 torture memo, which he described as flawed. It does I think relate to my previous post on the question of imminence. Zubaydah was captured in March 2002. The torture memo was written in July/August 2002. This was in the context, Goldsmith tells us, of increased ‘intelligence chatter’. He goes on… ‘inside the administration the “end-of-summer threat”, as it was called, seemed much worse. “We were sure there would be bodies in the streets” on September 11, 2002, a high-level Justice Department official later told me. Counterterrorism officials were terrified by a possible follow-up attack on the 9/11 anniversary and desparate to stop it.’ He quotes CIA Director George Tenet as saying “I’ve got reports of nuclear weapons in New York City, apartment buildings that are gonna be blown up, planes that are gonna fly into airports all over again”.
This is pretty general stuff and I don’t think it matches the strict criteria that is added later in the Bradbury memo. The absence of a specific threat may explain the ‘overbroad’ nature of the torture memo, something which Golsmith condemns. It is easy to recollect the fear of an anniversary attack and Goldsmith’s conclusion is understandable: ‘I’m sure that when the CIA’s interrogation techniques came for approval to the OLC in 2002, the lawyers felt the same pressure as everyone else to do everything possible to get information related to the expected attack.’ But surely there was (or should have been) an expectation that lawyers would have been aware of the need for policy makers to make finer grained analyses of threats and that recourse to torture probably depended on making a distinction between ‘expected’ and ‘imminent’ attack. As noted in an earlier post, this was included in the later Bradbury memo. Unfortunately, these safeguards were not included earlier memos, and, as Goldsmith notes, the possibility that those memos contributed to the abuses at Abu Ghraib brought ‘dishonor’ on the OLC and the US.