The Atlantic Home

Tomorrow, the Department of Justice plans to release largely unredacted versions of three Bush-era memorandums that critics suspect contain legal justification for torture and the broad use of executive power during wartime, according to an administration official.  The critical question: how much does the administration withhold in the name of national security?

After the Obama administration released nine earlier memorandums, written between 2002 and 2008 by several Justice Department lawyers, the administration asked a judge for more time to review three others, written by a senior Bush administration lawyer, Stephen Bradbury, over several years of Bush's second term.  One of those memos reportedly outlines, in detail, the techniques that CIA officers and interrogators can use to extract information from subjects.  According to the Wall Street Journal, the government authorized CIA officers to slam a detainee's head against a wall.  Memos have since been withdrawn by the Obama administration, which has begun an interagency review on interrogation methods.  The memos were obtained from the government by the American Civil Liberties Union.

The Journal reported yesterday that the administration was leaning towards a comprehensive redaction of the operational details revealed by a memo, leaving intact the legal analysis used to justify them.  That Solomonic compromise would not satisfy civil libertarians and would probably anger many Democrats in Congress.   Depending on the scope of the blacked out parts, the administration will be forced to justify its decisions in a federal court, next week. That would put it in the position of having to repeat classification arguments made by the Bush administration in 2007.

Though several senior administration officials said that the Journal story does not reflect the current state of thinking, they would not disclose what decisions had been made.

Various news reports suggest that most of Obama's national security team favors the full release of the memos; Attorney General Eric Holder and White House counsel Greg Craig have lobbied for full release; CIA director Leon Panetta, who last week notified employees that the CIA's secret detention facilities would be shut down, has transmitted the concerns of the agency's field officers, who worry that full disclosure would hamper their efforts to question terrorists.  Chief counterterrorism adviser John O. Brennan favors releasing the legal analysis but not the specific techniques used; National Security Adviser James Jones and Director of National Intelligence Dennis Blair count themselves in the transparency camp. Several members of Obama's Office of Legal Counsel urged the release of the memos before they joined the administration.

Pro-disclosure advocates have urged Obama to balance the trust he needs from CIA officials with the trust he earned from the many transparency advocates who backed his campaign. Obama vowed that "sunlight was the best disinfectant" for secret policies.  During the campaign, he meant it.

The ACLU today put pressure on the administration to release "full, unredacted" copies of the Bradbury memos.

"The information in these memos is vital to the historical record and to informing the public about what actions were carried out in its name," said Jameel Jaffer, the ACLU's top national security lawyer. "The release of the memos is also crucial to holding officials accountable for authorizing torture."

Holder, the attorney general, and others have argued internally that most of the information contained within the memo has already been released. The ACLU and other civil liberties groups have obtained more than 100,000 pages of formerly secret documents. The International Committee of the Red Cross's damning report on detention and torture was leaked to reporter Mark Danner last month; federal prosecutors and senior military officials have acknowledged, in detail, that not only were prisoners in CIA and military custody tortured, but described the means used to torture them.

Others, knowing Washington's ways, believe that if the CIA is worried that some of the torture methods are truly gruesome, well, that's exactly the first bit of information that an enterprising official will leak.  More headlines will be made.

Politically, this might be one of those situations where Obama is trying to please all his allies, when he can't possibly.  So he's trying to compromise with people he wants to maintain good relations with where no compromise is possible.

I predict that if Obama doesn't release all the memos, the left will start to really hammer him on torture proceedings, state secrets privilege and his quiet evolution on the Patriot Act.  Most have held back on this front, but this will make them feel abandoned and thus less restrained.