When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.
But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.
The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.
In other words, according to the NY Times timeline, Yoo and and Bybee authored the torture memo in 2002, which was repudiated by Jack Goldsmith in 2004 (conveniently in time for Gonzales' confirmation hearings) this repudiation which was then secretly repudiated by another memo which listed several of the same techniques utilized by the CIA that are not considered torture even under the language then being considered then by Congress for the Detainee Treatment Act, a memo that members of Congress did not know about even as they were passing the bill.
If you want to know why it's very difficult for persons such as ourselves to take the Bush administration seriously in any respect or believe any claim that they publicly make, this is why. Because they are more than willing to issue opinions, documents or whatnot that will conveniently allow them some political maneuvering room, while at the same time in secret or behind closed doors continuing to do exactly what they've done all along...acting as if no one will actually find out about these games. To think that no Presidential administration does this to some extent is incredibly naive, but the Bush administration has taken it to new levels of egregiousness and insult, and they have done it over matters crucial to our national security and standing in the world. Here's Jack Balkin on this news:
Despite the fact that Congress repeatedly passed legislation stating that it was illegal for U.S. personnel to engage in torture or cruel, inhuman and degrading treatment, the Justice Department repeatedly redefined the terms of these prohibitions so that the CIA could keep doing exactly what the Justice Department had authorized to do before. Gonzales treated all of these laws as if they made no difference at all, as if they were just pieces of paper.
What is particularly amazing-- and disturbing-- is that the revelation of the first torture memo had no effect on the Gonzales Justice Department. Instead, they resorted to misleading the public and twisting the law in secret opinions.
It is well worth asking how many other secret opinions the Justice Department has produced during the Bush Administration that justified violations of the Constitution, federal statutes, the laws of war, and international human rights.
And we need to be clear about the purpose of these memos. A memo crafted in secret is never one that is intended to explain or justify to the legality of particular measure the administration is taking in an effort to broadly justify such an approach. Such a memo serves a post hoc purpose; it's an excuse, handy for those who act under the "authority" of the memo who seek to avoid legal liability for what they do, in the way of either staying out of a court or as authority to cite to when they must defend themselves in court. It's a stay-out-of-jail-free card, or a note from mom to your school explaining why you skipped the day before. The memo itself doesn't really have to be legally supportable or believable to any truly rational person; you just have to show that it was good enough for you, an agent of the government, to rely on. That my friends is a pretty low bar given the unwillingness of courts to find government agents legally liable for the actions they take on behalf of the government. It's also a handy way to subvert the rule of law, and the system of checks and balances enshrined in our Constitution that lies at the heart of our democracy. But, small price to pay to be able to slap a few terrorists around, right?