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The Struggle Over the Torture Memos
By Jeffrey Rosen
The New York Times
Sunday 15 August 2004
WASHINGTON - At its annual meeting in Atlanta last week, the American Bar Association called for a bipartisan investigation into the Bush administration's internal deliberations about interrogation and detention that may have led to the torture of prisoners in Iraq.
At the same time, 180 prominent lawyers, judges and law professors signed a statement calling for the administration to release any remaining confidential memos relating to the treatment of prisoners and detainees.
The lawyers who demanded full disclosure of the secret memos insist that this openness is necessary to promote the rule of law, which depends on public accountability.
"The rules guiding the interrogators should be transparent," said Herman Schwartz, a professor at American University Law School. "If there are indeed orders to treat prisoners in ways that violate basic laws or common decency, we can hold those people accountable."
But if some degree of openness is necessary to preserve American democracy, how much openness can we afford?
"Publicity is justly commended as a remedy for social and industrial diseases," Justice Louis D. Brandeis wrote in 1933. "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
At the same time, no democracy can operate without a degree of secrecy, during times of peace as well as war. The framers of the Constitution understood the importance of balancing openness with confidentiality: James Madison championed the right to public trials, but delayed releasing the minutes of the Constitutional Convention in Philadelphia to protect candid deliberation.
In the middle of the war on terror, there may be special costs to revealing internal White House deliberations including tipping off the enemy about strategy and inhibiting frank legal debate that might check the president's worst instincts. "Confidentiality shouldn't be asserted to shield the government from accountability," said Judge J. Michael Luttig, former head of the Office of Legal Counsel in the first Bush administration, "but by the same token, confidential advice to the president is essential to the proper functioning of the executive branch."
Since 9/11, the Office of Legal Counsel has been responsible for two controversial memos suggesting that those acting at the direction of the commander in chief might be immune from prosecution for torture.
But Walter Dellinger, who headed the office during the Clinton years, notes that in every administration, about 20 percent of its memos have usually remained unpublished. Of these, a small percentage include classified information and the rest involve requests for legal advice when the executive branch never took the action in question and would prefer the advice not be disclosed.
"One reason for not releasing the unpublished memos is that an administration may sometimes come up with a truly stupid idea, and a strongly worded legal memorandum can dissuade them from taking the proposed action," Mr. Dellinger said. "If you know the memos will be made public and could be used against the United States in court, the executive may be reluctant to ask for candid advice on matters of questionable legality, and lawyers may be reluctant to give it."
According to John Yoo, the former Bush administration official who wrote some of the most controversial torture memos, the call for openness has already inhibited candid deliberation within the Justice Department. He also fears that too much disclosure might tip off the enemy and discourage the executive from considering aggressive measures in the war on terror.
"Would you want the government to have open discussions about whether we could legitimately assassinate Osama bin Laden, and what rules you'd have to follow?" asked Mr. Yoo, who teaches law at the University of California at Berkeley. "Suppose it was disclosed that the government concluded that you couldn't attack Osama in a civilian's house. You would be telling the other side what to avoid."
Legal scholars who call for the release of unpublished memos insist that the Bush administration should be held to higher standards of disclosure than its predecessors because of the aggressiveness of its legal claims. "The more the president claims a power of extraordinary policy making which is liberated from the normal operations of checks and balances, the more he has to be publicly accountable," said Bruce Ackerman of Yale Law School.
Of course, every institution in a democracy tends to demand transparency for its rivals and opacity for itself. Some Senate Democrats now calling for the release of the torture memos demanded a leak investigation when their own memos about blocking President Bush's judicial nominations were disclosed. And some law professors and judges who are calling for a commission to subpoena the Bush administration's internal deliberations objected to Kenneth W. Starr's repeated assaults on the internal deliberations of the Clinton administration.
After the scandals involving abuse of the F.B.I.'s surveillance authority in the 1970's, Congress required the executive branch to notify the intelligence committees about its covert operations without disclosing them to the world. A similar Congressional oversight system might be created to review the policies about detention.
In a coming report, Philip B. Heymann and Juliette Kayyem of Harvard University propose a model for confidential oversight of interrogations that fall short of torture. Interrogators, they suggest, should report to Congress but not to the public at large.
Ms. Kayyem notes that this system of confidential oversight won't entirely please the government or its critics, but she says, if too little openness may threaten democracy, some opacity may be vital to preserve it.
Charles Fried, a former United States solicitor general, agreed. "Democracy requires the amount of transparency necessary to understand what our leaders actually do," he said. "We can force them to explain themselves but do we also need to know how they arrived at their conclusions? I'm not sure about that."
Jeffrey Rosen is the author of "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age."
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