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Close the torture loophole

The possibility that Obama might free the CIA from military interrogation rules is intolerable.

April 18, 2009

Previous revelations about the abuse of suspected terrorists by the CIA did nothing to lessen the horrors of the Bush-era Justice Department memos released Thursday by the Obama administration. Almost as shocking as the documents' catalog of cruelties are the Orwellian arguments with which their authors rationalized waterboarding, the withholding of food and other violations of human dignity.

President Obama deserves credit for rejecting arguments that official disclosure of these "enhanced" interrogation techniques would set a dangerous precedent. But he continues to hedge about whether the CIA might once again be freed from the standards of conduct imposed on interrogators for the military. Indignation over these shameful documents should convince the president that a double standard for interrogation is intolerable.

Citizens who thought they were inured to disclosures of torture carried out in their name should be shaken by the chilling defense of waterboarding by Jay S. Bybee, who now serves on the federal appeals court with jurisdiction over California. The controlled drowning designed to intimidate detainees didn't constitute torture, Bybee wrote in a 2002 memo, because it doesn't result in "prolonged mental harm."

For those who like to think of lawyers as guardians of individual rights, the memos are heartbreaking. In a bloodless legal exercise that can only be called surreal, Justice Department lawyers parsing prohibitions against torture differentiated between confining a prisoner afraid of insects with a dangerous specimen (forbidden) and with a benign one ("such as a caterpillar"). In defending the denial of food to prisoners, a government lawyer noted that "several commercial weight-loss programs available in the United States involve similar or even greater reductions in caloric intake."

The Obama administration has repudiated these documents and the policies they endorsed. Unlike his predecessor, Atty. Gen. Eric H. Holder Jr. forthrightly has described waterboarding as torture. In January, Obama ordered that the CIA abide by interrogation guidelines in the Army Field Manual, which forbid the sordid and sadistic methods the agency had employed. But that order came with some ominous fine print: Obama said a task force would determine whether the CIA and other civilian agencies required "additional or different guidance" on interrogation methods.

The release of the memos was accompanied by a promise from Obama that he wouldn't seek the prosecution of CIA employees whose despicable acts were committed with the approval of their government. In the same spirit, Obama must close the loophole he shouldn't have created in the first place.

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