On Tuesday, President Obama did not rule out that Holder might prosecute the legal architects of the abusive interrogation policies, and said he was open to a bipartisan congressional commission investigating the Bush administration’s use of harsh interrogation techniques and how the policies were developed. And European and U.N. officials are increasingly saying that if the United States does not prosecute what appears to be a violation of the Convention Against Torture, to which the United States is a signatory, then European prosecutors may initiate prosecution themselves.
The release on Tuesday of the complete Senate Armed Services Committee report makes turning a blind eye to the past even more difficult. That’s because the report concludes that in many respects, Bush administration officials ignored prevailing domestic and international law and the legal advice of U.S. military lawyers in developing the abusive interrogation policies.
Some of the facts set out in the report strongly suggest that further investigation is warranted as to whether the legal conclusions were reached in good faith by the lawyers, and whether policymakers acted reasonably in relying on them. That’s critical to the defense put forward by Bush administration officials such as former Attorney General Michael Mukasey and Vice President Dick Cheney, who have consistently defended the Bush administration’s conduct by saying they all reasonably relied on the good-faith advice of government lawyers.
The Senate Armed services report repeatedly calls that “good faith” into question.
“The report talks about Haynes disregarding the advice from JAGS [Judge Advocates General], and disregarding other legal opinions,” said Michael Ratner, president of the Center for Constitutional Rights who has been calling for years for appointment of an independent prosecutor to investigate the Bush administration’s interrogation policies. “If you’re a prosecutor, that gives you something. That questions good faith.”
That's because crafting a legal opinion that ignores legal precedent, and ignoring legal advice that's inconvenient, do not constitute "good faith."
Also Ali Soufan, a former FBI special agent who interrogated Abu Zubaydah, takes to the pages of the NY Times to criticize the torture policies as not only ineffective but counter-productive:
It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.
We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.
There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.
Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.
One of the worst consequences of the use of these harsh techniques was that it reintroduced the so-called Chinese wall between the C.I.A. and F.B.I., similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks. Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him.
Of course as we know, what the Bush administration really wanted out of Zubaydah was proof that Al Qaeda and Saddam Hussein were collaborating, which naturally they didn't get because no such collaboration existed. Zubaydah's unwillingness to provide politically convenient false testimony is what got him waterboarded 83 times.