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Bradbury on Torture

By Jack M. Balkin

Steven Bradbury, who is Deputy Assistant Attorney General for OLC (there has not been an official AAG at OLC for some time), is testifying today before the House Intelligence Committee. Here's his written statement. Not much to speak of there, except to note that he will not discuss the CIA techniques that have been deemed legal or unlawful, other than a welcome suggestion that hypothermia ("extremes in temperature") is now proscribed, even under DOJ analysis. Bradbury confirms that DOJ (that is, AG Mukasey) continues to adhere to the legal analysis in the December 2004 OLC opinion, with its indefensible reading of the torture statute. Bradbury also confirms what others in the Administration have been saying recently -- namely, that the "enhanced techniques" are used not merely in proverbial (but in fact mythical) "ticking timebomb" situations, but instead whenever the method in question is deemed "necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership."

Also, and perhaps most notably, Bradbury confirms that the Administration "has briefed the Intelligence Committees on the operational details relating to the program, including all of the interrogation practices that have been employed, or are currently authorized to be employed, and the authorities supporting those practices." Yet the members of the Intel Committees have done nothing about it -- not even to publicly reveal the Administration's "authorities." Yes, this can be explained in part by the fact that if they did talk, they would be accused (absurdly) of providing classified information to the enemy. But even if members of the Intel Committees did dispute OLC's legal conclusions as to some techniques, it's not clear that they'd be inclined to actually do anything about it, nor is it clear what they could do. The system of oversight is fundamentally compromised.

Full post as published by Balkinization on February 14, 2008 (boomark / email).