Defining Torture in the War on Terror (Sequel)

Following the September 11, 2001 attacks on the United States, President George W. Bush launched a military offensive in Afghanistan that resulted in the capture of al-Qaeda activists believed to be behind the attacks. Senior US officials debated how to extract important information from them about Al Qaeda’s future plans. The CIA wanted to use aggressive interrogation techniques that it believed necessary to convince detainees to divulge their knowledge. However, CIA officials feared that such techniques could violate international treaties prohibiting torture and “cruel, inhuman or degrading” treatment of prisoners of war and detainees, as well as national laws that enforce them. To protect its agents, the CIA asked for a clear statement from the Bush administration on how far agents could go to force prisoners to speak up. These cases tell the story of OLC’s legal intelligence and its aftermath. Part A (1853.0) describes a series of OLC memoranda on the treatment of inmates in the “War on Terror”, culminating in an August 2002 statement known as the “Torture Memorandum”, which has the legal meaning of torture interpreted strictly, but a complete description of the constitutional powers of the president in times of war. Part A ends with the Assistant Attorney General and OLC Chief Jay Bybee deciding whether to sign the advisory report. Part B (1854.0) traces the results of the torture memorandum and traces the use of interrogation techniques approved by CIA prison camps abroad to the naval base at Guantanamo Bay, Cuba. According to some, these harsher techniques eventually “migrated” to the Abu Ghraib prison in Iraq, where the abusive treatment of inmates became an international embarrassment to the United States. HKS case number 1854.1

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