TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

• Three May 2005 memos found that waterboarding and other harshtechniques, whether individually or in concert, did not violate the federalcriminal prohibition against torture since CIA had implementedcertain safeguards and limitations to the techniques. However, a footnotein one of the memos noted that according to CIA’s InspectorGeneral, these rules were not always followed. 164After releasing the controversial memos, the Obama Administration stated itwas not interested in prosecuting current and former CIA officers who carriedout coercive interrogations within the confines of OLC’s legal reasoning. 165President Obama initially played down—but did not rule out—the possibilitythat the lawyers and policymakers who authored these opinions may face civilor criminal penalties. 166A July 2009 Justice Department Office of Professional Responsibility (OPR)report concluded that the principal OLC lawyers responsible for the memos,John Yoo and Jay Bybee, had committed professional misconduct by failing toexercise independent legal judgment. 167 However, Associate Deputy AttorneyGeneral David Margolis overrode that finding in a memorandum of decisionhe issued following consideration of Yoo and Bybee’s responses to the OPR report.Issued in January 2010, the Margolis memo effectively cleared the OLClawyers of any wrongdoing in their oversight of CIA interrogation practices. 168In August 2009, the Justice Department appointed a special prosecutor to conducta preliminary investigation into allegations of abuse by CIA interrogatorsthat first surfaced in a 2004 CIA Inspector General report. 169 The decision toopen the probe was controversial and opposed by the current CIA Directorand several former Directors. However, the Attorney General has insisted thatthose interrogators who did not stray beyond the legal boundaries for interrogationset by the Justice Department during the Bush Administration wouldnot be subject to prosecution. 170History of CIA’s Enhanced Interrogation ProgramIn the months following the 9/11 attacks, political leaders and the IntelligenceCommunity felt pressure to take steps necessary to prevent future—and possibly imminent—terrorist attacks. Thus, after being given permis-74 Trials by Fire: Counterterrorism and the Law

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