Reply #6: Torture Memo 2.0

[ProSense]

Jack Balkin:

The twisting of law by the Justice Department under Alberto Gonzales is far worse than Gonzales' misleading testimony in front of Congress about the U.S. Attorney scandal. That scandal dominated the headlines for weeks. This one deserves far more searching press scrutiny. Despite the fact that Congress repeatedly passed legislation stating that it was illegal for U.S. personnel to engage in torture or cruel, inhuman and degrading treatment, the Justice Department repeatedly redefined the terms of these prohibitions so that the CIA could keep doing exactly what the Justice Department had authorized to do before. Gonzales treated all of these laws as if they made no difference at all, as if they were just pieces of paper.

What is particularly amazing-- and disturbing-- is that the revelation of the first torture memo had no effect on the Gonzales Justice Department. Instead, they resorted to misleading the public and twisting the law in secret opinions. And, as the Times report suggests, Gonzales found an all-too-eager ally in the talented Mr. Bradbury, who was given a probationary period as head of OLC to see whether he would produce the sort of legal advice that the Bush Administration wanted. Bradbury, it appears, was only too happy to comply. He signed the secret Torture Memo 2.0. And then he wrote another secret memo, Torture Memo 3.0, which held that the recently passed Detainee Treatment Act-- which banned cruel, inhuman and degrading treatment-- did not affect the CIA's practices one bit.

It is well worth asking how many other secret opinions the Justice Department has produced during the Bush Administration that justified violations of the Constitution, federal statutes, the laws of war, and international human rights.

An essential component of the rule of law is transparency. The laws must be knowable, not only so that people can structure their behavior with fair warning, but also to prevent government officials from engaging in abuses of power. The Bush Administration has used the shibboleths of terrorism and national security to violate this basic principle.

The Administration said, "Trust us." And then this is what they did in secret.