Memo on Methods Of Interrogation Had Wide Review
The CIA has suspended the use of extraordinary interrogation techniques approved by the White House pending a review by Justice Department and other administration lawyers, intelligence officials said.
The “enhanced interrogation techniques,” as the CIA calls them, include feigned drowning and refusal of pain medication for injuries. The tactics have been used to elicit intelligence from al Qaeda leaders such as Abu Zubaida and Khalid Sheik Mohammed.
Current and former CIA officers aware of the recent decision said the suspension reflects the CIA’s fears of being accused of unsanctioned and illegal activities, as it was in the 1970s. The decision applies to CIA detention facilities, such as those around the world where the agency is interrogating al Qaeda leaders and their supporters, but not military prisons at Guantanamo Bay, Cuba, and elsewhere.
“Everything’s on hold,” said a former senior CIA official aware of the agency’s decision. “The whole thing has been stopped until we sort out whether we are sure we’re on legal ground.” A CIA spokesman declined to comment on the issue.
CIA interrogations will continue but without the suspended techniques, which include feigning suffocation, “stress positions,” light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government.
The suspension is the latest fallout from the abuse scandal at Abu Ghraib prison in Iraq, and is related to the White House decision, announced Tuesday, to review and rewrite sections of an Aug. 1, 2002, Justice Department opinion on interrogations that said torture might be justified in some cases.
Although the White House repudiated the memo Tuesday as the work of a small group of lawyers at the Justice Department, administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel’s office and Vice President Cheney’s office.
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The memorandum was drafted by the Justice Department’s Office of Legal Counsel to help the CIA determine how aggressive its interrogators could be during sessions with suspected al Qaeda members. The legal opinion was signed by Jay S. Bybee, then head of the office and now a federal judge. The office consists mainly of political appointees and is considered the executive branch agencies’ legal adviser. Memos signed by the head of the office are given the weight of a binding legal opinion.
A Justice Department official said Tuesday at a briefing that the office went “beyond what was asked for,” but other lawyers and administration officials said the memo was approved by the department’s criminal division and by the office of Attorney General John D. Ashcroft.
In addition, Timothy E. Flanigan — then deputy White House counsel — discussed a draft of the document with lawyers at the Office of Legal Counsel before it was finalized, the officials said. David S. Addington, Cheney’s counsel, also weighed in with remarks during at least one meeting he held with Justice lawyers involved with writing the opinion. He was particularly concerned, sources said, that the opinion include a clear-cut section on the president’s authority.
That section of the memo has become among the most controversial within the legal community that has analyzed the opinion since it was made public by The Washington Post. During Tuesday’s briefing, White House counsel Alberto R. Gonzales called the commander in chief section “unnecessary.”
The Justice Department, he said, “will make a decision as to whether or not that is something that should continue to remain in the opinion.” Justice Department officials said it would be scrapped.
The commander in chief section of the opinion said laws prohibiting torture do “not apply to the President’s detention and interrogation of enemy combatants” in his role as commander in chief. Congress, which has signed international laws prohibiting torture, “may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield,” according to the August memorandum.
Another element of the opinion criticized by outside lawyers is that it defines torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” That standard would allow a variety of tactics that would be considered cruel and inhumane under international law, legal experts have said.
At a briefing Tuesday, Gonzales declined to answer repeated questions about how the legal opinion, or the upcoming review of it, affected the CIA. But, he added, “As far as I’m told, every interrogation technique that has been authorized throughout the government is lawful and does not constitute torture.”
Asked yesterday about the memo’s circulation to a wider group of officials than previously known, White House spokeswoman Erin Healy replied in an e-mail: “It would not be uncommon for the Department of Justice to discuss issues with lawyers throughout the administration. Regardless, the President’s policy is very clear. He expects detainees to be treated in a manner consistent with our laws, treaties and values. The President has spoken out against torture, he has never authorized it, nor will he. As we have said, portions of the memo are overbroad and the Department of Justice is reviewing it.”
The legal debate over CIA interrogation techniques had its origins in the battlefields of Afghanistan, secret counterterrorism operations in Pakistan and in President Bush’s decision to use unconventional tools in going after al Qaeda.
The interrogation methods were approved by Justice Department and National Security Council lawyers in 2002, briefed to key congressional leaders and required the authorization of CIA Director George J. Tenet for use, according to intelligence officials and other government officials with knowledge of the secret decision-making process.
When the CIA and the military “started capturing al Qaeda in Afghanistan, they had no interrogators, no special rules and no place to put them,” said a senior Marine officer involved in detainee procedures. The FBI, which had the only full cadre of professional interrogators from its work with criminal networks in the United States, took the lead in questioning detainees.
But on Nov. 11, 2001, a senior al Qaeda operative who ran the Khaldan paramilitary camp in Afghanistan was captured by Pakistani forces and turned over to U.S. military forces in January 2002. The capture of Ibn al-Shaykh al-Libi, a Libyan, sparked the first real debate over interrogations. The CIA wanted to use a range of methods, including threatening his life and family.
But the FBI had never authorized such methods. The bureau wanted to preserve the purity of interrogations so they could be used as evidence in court cases.
Al-Libi provided the CIA with intelligence about an alleged plot to blow up the U.S. Embassy in Yemen with a truck bomb and pointed officials in the direction of Abu Zubaida, a top al Qaeda leader known to have been involved with the Sept. 11 plot.
In March 2002, Abu Zubaida was captured, and the interrogation debate between the CIA and FBI began anew. This time, when FBI Director Robert S. Mueller III decided to withhold FBI involvement, it was a signal that the tug of war was over. “Once the CIA was given the green light . . . they had the lead role,” said a senior FBI counterterrorism official.
Abu Zubaida was shot in the groin during his apprehension in Pakistan. U.S. national security officials have suggested that painkillers were used selectively in the beginning of his captivity until he agreed to cooperate more fully. His information led to the apprehension of other al Qaeda members, including Ramzi Binalshibh, also in Pakistan. The capture of Binalshibh and other al Qaeda leaders — Omar al-Faruq in Indonesia, Rahim al-Nashiri in Kuwait and Muhammad al Darbi in Yemen — were all partly the result of information gained during interrogations, according to U.S. intelligence and national security officials. All four remain under CIA control.
A former senior Justice Department official said interrogation techniques for “high-value targets” were reviewed and approved on a case-by-case basis, based partly on what strategies would work best on specific detainees. Justice lawyers suggested some limitations that were adopted, the former official said.
The former official, who spoke on the condition of anonymity because of the sensitivity of the issue, said the administration concluded that techniques did not amount to torture if they did not produce significant physical harm or injury. However, interrogators were allowed to trick the detainees into thinking they might be harmed or instructed to endure unpleasant physical tasks, such as being forced to stand or squat in stress positions.
“Clearly, that is not considered torture,” the former Justice official argued. “It might be unpleasant and it might offend our sensibilities in most situations, but in these situations they were necessary and productive.”
At the same time, the former official said, “we never had a situation where we said, ‘You can do anything you want to.’ We never, ever did that. We were aggressive, but our people were very scholarly and lawyerlike.”
Staff writers John Mintz and Dan Eggen contributed to this report.
June 27, 2004
Dana Priest, Washington Post Staff Writer