The CIA’s Failure to Rely in ‘Good Faith’ on the OLC

by Kevin Jon Heller

I argued below that “good faith reliance” on OLC opinions does not justify promising CIA interrogators that they will not be prosecuted for their criminal acts.  With regard to waterboarding, it is important to note that it seems clear some of the interrogators cannot even argue good faith reliance.  Consider the following footnote from Bradbury’s May 10, 2005, memo, discussing the CIA Inspector General’s Report on Counterterrorism and Detention Activities.  Pay attention to the quoted language, which was redacted in the version of the IG Report released to the public:

51. The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 45,103, 104 and also that it was used in a different manner. See id. at 37 (“The waterboard technique was different from the technique described in the DOJ opinion and used in the SERE training.  The difference was in the manner in which the detainee’s breathing was obstructed.  At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by by the firm application of a damp cloth over the air passages; the Interrogator applies a small amount of water to the cloth in a controlled manner.  By contrast, the Agency interrorgator… applies large volumes of water to a cloththat covered the detainee’s mouth and nose.  One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different than that used by in SERE training because it is ‘for real’ and is ‘more poignant and convincing’.”)….  The Inspector General further reported that… “[c]onsequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”  Id. at 21 n.26.

The footnote makes clear that the CIA’s waterboarding regime was different from — and much harsher than — the waterboarding regime approved by the Justice Department.  The interrogators involved in waterboarding, therefore, cannot argue that they were simply “relying in good faith upon legal advice from the Department of Justice,” Obama’s publicly-stated requirement for guaranteeing not to prosecute them.

I presume that Obama will support prosecuting those CIA interrogators.

4 Responses

  1. The link you provided to your earlier post isn’t working.

  2. The link to the earlier post isn’t working any more.

    The one about Obama granting ‘impunity’ and misunderstanding ‘estoppel by entrapment’.

    Seems to have disappeared from the archives?

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  1. […] question is unlikely to be subject to judicial inquiry.”)  Additionally, OJ argues that the waterboarding used by CIA interrogators was much harsher than the regime approved by the […]

  2. […] practice of waterboarding exceeded the limits prescribed by the memos, meaning that pertinent CIA officials should not escape liability on a good faith reliance defense […]