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Bush Lawyer: Proposed Romney Torture Policy Is ‘Indisputably Illegal’

By Zack Beauchamp on October 3, 2012 at 10:30 am

"Bush Lawyer: Proposed Romney Torture Policy Is ‘Indisputably Illegal’"

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Last week, New York Times reporter Charlie Savage unearthed an internal Romney campaign memo advising the candidate to bring back Bush-era “enhanced interrogation techniques” if elected. Though the memo notes that “it is difficult to point to concrete ways in which the Obama Administration’s renunciation of enhanced interrogation techniques has undermined America’s effort in the fight against terrorism,” it recommends a President Romney “pledge” to “rescind President Obama’s executive order restricting government interrogators” from torturing detainees.

This Wednesday, Jack Goldsmith, the head of the Office of Legal Counsel (OLC) under President George W. Bush, concluded that any return to the use of torture or any other so-called “enhanced interrogation techniques” would be both “indisputably illegal” and strongly opposed by the interrogators who would be tasked with the torturing. Goldsmith, a prominent right-wing legal mind who focuses on terrorism and the law, wrote that a Romney administration would likely not rescind Obama’s torture ban for these reasons (among others):

As a result of the many wrenching investigations (some still ongoing) and other consequences of its interrogation experiences during the last decade, I think the CIA (and DOD, and the rest of the intelligence community) would firmly resist any resumption of official responsibilities for interrogation techniques that departed a lot from the current settlement. Third, I think the likelihood of a return to waterboarding and other extreme interrogation techniques is — despite polls and Romney campaign statements – nill. There are many reasons for this, including bureaucratic resistance, but the main one is that such techniques are now indisputably illegal, and I do not believe that both Houses of Congress would vote to wind back the protections of the Detainee Treatment Act and common Article 3 of the Geneva Convention.

Since the central argument in the memo for rescinding Obama’s executive order is that Bush-era torture was effective (contra the expert consensus), Goldsmith’s analysis implies one of two things: Romney’s lawyers are advising him to condone “indisputably illegal” behavior or they don’t really mean what they say in the memo.

One of Romney’s key advisers on terrorism-related issues is Michael Hayden, a Bush CIA and NSA director who remains a staunch defender of the previous administration’s torture policies.

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