John Yoo and some other Bush administration lawyers who
built the legal framework for torture are now out of the U.S. government, but
one still holds a Cabinet-level rank: Homeland Security Secretary Michael
In the summer of 2002, Chertoff, then head of the Justice
Department�s Criminal Division, offered assurances to the CIA that its
interrogators would not face prosecution under anti-torture laws if they
followed guidelines on aggressive techniques approved by the department�s
Office of Legal Counsel, where Yoo worked.
Those guidelines stretched the rules on permissible
treatment of detainees by narrowly defining torture as intense pain equivalent
to organ failure or death. Specific interrogation techniques were gleaned from
a list of methods that the U.S. military feared might be used against American
soldiers if they were captured by a ruthless enemy.
Three years ago, when Chertoff was facing confirmation
hearings to be Homeland Security chief, the New York Times cited three
senior-level government sources as describing Chertoff�s Criminal Division as
fielding questions from the CIA about whether its officers risked prosecution
if they employed certain harsh techniques.
�One technique the CIA officers could use under
circumstances without fear of prosecution was strapping a subject down and
making him experience a feeling of drowning,� the Times reported.
In other words, Chertoff appears to have green-lighted the
technique known as �waterboarding,� which has been regarded as torture since
the days of the Spanish Inquisition.
Chertoff reportedly did object to some other procedures,
such as death threats against family members and mind-altering drugs that would
change a detainee�s personality, the Times reported. [NYT, Jan. 29, 2005]
During his Senate confirmation hearings in February 2005,
Chertoff denied providing the CIA with legal guidance on the use of specific
interrogation methods, such as waterboarding. Rather, he said he gave the
agency broad guidance in response to questions about interrogation methods.
"You are dealing in an area where there is potential
criminality," Chertoff said in describing his advice to the CIA. "You
better be very careful to make sure that whatever you decide to do falls well
within what is required by law."
Nevertheless, the evidence continues to build that
Chertoff�s assurances gave CIA interrogators confidence they would avoid
prosecution as long as they stayed within the permissive guidelines devised by
deputy assistant attorney general John Yoo and his boss at the Office of Legal
Counsel, Jay Bybee.
The Abu Zubaydah case
Chertoff�s reported assurances to CIA agents appear to have
led directly to the use of waterboarding against alleged al-Qaeda operative Abu
Zubaydah in August 2002.
"The CIA was seeking to determine the legal limits of
interrogation practices for use in cases like that of Abu Zubaydah, the Qaeda
lieutenant who was captured in March 2002," according to the New York
The Abu Zubaydah case was the first time that waterboarding
was used against a prisoner in the �war on terror,� according to Pentagon and
Justice Department documents, news reports and several books written about the
Bush administration�s interrogation methods.
In The One Percent Doctrine, author Ron Suskind reported that President George W. Bush had
become obsessed with Zubaydah and the information he might have about pending
terrorist plots against the United States.
"Bush was fixated on how to get Zubaydah to tell us the
truth," Suskind wrote. Bush questioned one CIA briefer, "Do some of
these harsh methods really work?"
The waterboarding of Abu Zubaydah was videotaped, but that
record was destroyed in November 2005 after the Washington Post published a
story that exposed the CIA's use of so-called "black site" prisons
overseas to interrogate terror suspects.
John Durham, an assistant US attorney in Connecticut, was
appointed special counsel earlier this year to investigate the destruction of
that videotape as well as destroyed film on other interrogations.
The CIA officials who pressed Chertoff to give assurances
protecting CIA interrogators included former CIA General Counsel Scott Muller
and his deputy, John Rizzo, according to the New York Times. Muller and Rizzo,
who is now the CIA�s general counsel, are at the center of Durham�s probe.
The Times also reported that Chertoff participated in the
drafting of a second still-secret memo in August 2002, which allegedly
described specific interrogation methods that CIA interrogators could use
Those interrogation techniques were derived from the Army
and Air Force�s Survival, Evasion, Rescue, and Escape (SERE) training program.
But those techniques were meant to prepare U.S. soldiers for abuse they might
suffer if captured by a brutal regime, not as methods for U.S. interrogations.
Latest ACLU document release
Last week, the American Civil Liberties Union released more
than 300 pages of documents showing that, in 2003, military interrogators used
methods they learned during SERE training against eight Afghanistan detainees
held at the Gardez Detention Facility in southeastern Afghanistan.
Those methods included forcing a detainee to kneel outside
in wet clothing, spraying the person with cold water, and punching and kicking
a detainee over the course of three weeks.
One of the prisoners, an 18-year-old Afghan militia fighter,
named Jamal Naseer, later died. The documents released to the ACLU say his body
was so severely beaten by his interrogators that it appeared to be a black and
green color at the time of his death.
Amrit Singh, an ACLU attorney, said the SERE tactics that
were approved by the Justice Department were never intended to be used by the
U.S. government against its detainees.
The latest disclosures further erode claims by President
Bush, Vice President Dick Cheney and then-Defense Secretary Donald Rumsfeld
that prisoner abuses at Gardez -- or the torture of prisoners at Abu Ghraib --
were isolated acts by a few �bad apples.�
To the contrary, it appears that the policies approved by
Bush and the assurances provided by Chertoff and others led to the atrocities
at the CIA detention centers as well as the prisoner abuse at Abu Ghraib and
An action memorandum, dated Feb. 7, 2002, and signed by
President Bush, stated that the Geneva Convention did not apply to members of
al-Qaeda or the Taliban.
That, in turn, led Lt. Gen. Ricardo S. Sanchez, the top
commander in Iraq to institute a �dozen interrogation methods beyond� the
Army�s standard practice under the convention, according to a 2004 report on
the prisoner abuse at Abu Ghraib prepared by a panel headed by James
Sanchez said he based his decision on �the President's
Memorandum,� which he said had justified "additional, tougher
measures" against detainees, the Schlesigner report said.
Other prisoner abuses resulted from Rumsfeld�s verbal and
written authorization in December 2002 allowing interrogators to use �stress
positions, isolation for up to 30 days, removal of clothing and the use of
detainees' phobias (such as the use of dogs),� according to a separate report
issued by Army Maj. Gen. George R. Fay.
�From December 2002, interrogators in Afghanistan were
removing clothing, isolating people for long periods of time, using stress
positions, exploiting fear of dogs and implementing sleep and light
deprivation,� the Fay report said.
Rumsfeld�s approval of certain interrogation methods
outlined in a December 2002 action memorandum was criticized by Alberto Mora,
the former general counsel of the Navy.
�The interrogation techniques approved by the Secretary [of
Defense] should not have been authorized because some (but not all) of them,
whether applied singly or in combination, could produce effects reaching the
level of torture, a degree of mistreatment not otherwise proscribed by the memo
because it did not articulate any bright-line standard for prohibited detainee
treatment, a necessary element in any such document,� Mora wrote in a 14-page
letter to the Navy�s inspector general.
Additionally, a Dec. 20, 2005, Army Inspector General Report
relating to the capture and interrogation of Mohammad al-Qahtani included a
sworn statement by Lt. Gen. Randall M. Schmidt. It said Secretary Rumsfeld was
�personally involved� in the interrogation of al-Qahtani and spoke �weekly�
with Maj. Gen. Geoffrey Miller, the commander at Guantanamo, about the status
of the interrogations between late 2002 and early 2003.
Gitanjali S. Gutierrez, an attorney with the Center for
Constitutional Rights who represents al-Qahtani, said in a sworn declaration
that his client, imprisoned at Guantanamo, was subjected to months of torture
based on verbal and written authorizations from Rumsfeld.
�At Guant�namo, Mr. al-Qahtani was subjected to a regime of
aggressive interrogation techniques, known as the �First Special Interrogation
Plan,� that were authorized by U.S. Secretary of Defense Donald Rumsfeld,� Gutierrez
�Those techniques were implemented under the supervision and
guidance of Secretary Rumsfeld and the commander of Guant�namo, Major General
Geoffrey Miller. These methods included, but were not limited to, 48 days of
severe sleep deprivation and 20-hour interrogations, forced nudity, sexual
humiliation, religious humiliation, physical force, prolonged stress positions
and prolonged sensory over-stimulation, and threats with military dogs.�
Gutierrez�s claims about the type of interrogation al-Qahtani
endured have since been borne out with the release of hundreds of pages of
internal Pentagon documents describing interrogation methods at Guantanamo and
at least two independent reports about prisoner abuse.
According to the Schlesinger report, orders signed by Bush
and Rumsfeld in 2002 and 2003 authorizing brutal interrogations �became policy�
at Guantanamo and Abu Ghraib.
In February, the Justice Department's Office of Professional
Responsibility (OPR) confirmed that it launched a formal investigation to
determine, among other issues, whether agency attorneys, including Chertoff,
provided the White House and the CIA with poor legal advice when it said CIA
interrogators could use harsh interrogation methods against detainees.
Yoo is currently a law professor at the University of
California at Berkeley.
Leopold is the author of "News Junkie," a memoir. Visit
www.newsjunkiebook.com for a