A Justice Department legal opinion issued in August 2002
advised the CIA that its interrogators would not be prosecuted for violating
anti-torture laws as long as they acted in �good faith� while using brutal
techniques to obtain information from suspected terrorists, according to a
previously undisclosed memo released publicly last Thursday.
The closely guarded Aug. 1, 2002, memo provided the Bush
administration with the legal framework to use �alternative interrogation
methods� against suspected terrorists captured in the war on terror.
The heavily redacted document, obtained by the American
Civil Liberties Union under a Freedom of Information Act request, was signed by
then Assistant Attorney General Jay Bybee and specifically outlined approved
methods the CIA could use, such as waterboarding, during interrogations.
Waterboarding has been regarded as torture since the days of the Spanish
�To validate the statute, an individual must have the
specific intent to inflict severe pain or suffering,� the Aug. 1, 2002 memo
says. �Because specific intent is an element of the offense, the absence of specific
intent negates the charge of torture.�
The Bybee memo was written by John Yoo, a former deputy
attorney general at the DOJ�s Office of Legal Counsel (OLC), and preceded a
second August 2002 legal opinion about CIA interrogation methods leaked to the
media in 2004. Both memos were later rescinded.
The Aug. 1, 2002, legal opinion was based on a statute
governing health benefits when Yoo provided the White House with a legal
opinion defining torture, according to a former Justice Department official.
Yoo�s legal opinion stated that unless the amount of pain
administered to a detainee results in injury �such as death, organ failure, or
serious impairment of body functions� than the interrogation technique could
not be defined as torture.
Waterboarding, a brutal and painful technique in which a
prisoner believes he is drowning, Yoo wrote, therefore was not considered to be
�That statute defined an �emergency medical condition� that
warranted certain health benefits as a condition �manifesting itself by acute
symptoms of sufficient severity (including severe pain)� such that the absence
of immediate medical care might reasonably be thought to result in death, organ
failure, or impairment of bodily function,� Jack Goldsmith, the former head of OLC,
wrote in his book, The Terror Presidency
�The health benefits statute�s use of �severe pain� had no
relationship whatsoever to the torture statute. And even if it did, the health
benefit statute did not define �severe pain.� Rather it used the term �severe
pain� as a sign of an emergency medical condition that, if not treated, might
cause organ failure and the like. . . . OLC�s clumsily definitional arbitrage
didn�t seem even in the ballpark.�
Yoo, who now teaches at the University of California at Berkeley,
also drafted a March 14, 2003 document, nearly identical to the August 2002
memo he authored, that essentially provided military interrogators with legal
cover if they resorted to brutal and violent methods to extract information
from prisoners. The ACLU under a FOIA request also obtained that document
earlier this year.
�If a government defendant were to harm an enemy combatant
during an interrogation in a manner that might arguably violate a criminal
prohibition, he would be doing so in order to prevent further attacks on the
United States by the al-Qaeda terrorist network,� Yoo wrote in the March 14,
�In that case, we believe that he could argue that the
Executive Branch�s constitutional authority to protect the nation from attack
justified his actions.�
The Justice Department�s Office of Professional
Responsibility (OPR) launched a formal investigation to determine whether
agency attorneys, including Yoo and Bybee, provided the White House with poor
legal advice when it drafted the legal opinions. In a Feb. 18, letter sent to
Sen. Dick Durbin, the Illinois Democrat who requested the probe, H. Marshall
Jarrett, the head of OPR, said his office intends to question Yoo, and his
former boss, Jay Bybee, the former head of OLC, now a federal appeals court
judge in San Francisco, who signed the �torture memo.�
�Among other issues, we are examining whether the legal
advice contained in those memoranda was consistent with the professional
standards that apply to Department of Justice attorneys,� Jarrett�s letter
says, adding that his office may release the findings of the investigation
The Aug. 1, 2002, memo was prepared the same month the CIA
moved to employ a more extreme form of interrogation against al-Qaeda operative
�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 a Jan. 29, 2005, New
York Times article.
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.
The 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.
One of the architects behind the Aug. 1, 2002, memo is
Michael Chertoff, the secretary of the Department of Homeland Security.
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 a ruthless enemy captured them.
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,� according to the Jan. 29, 2005,
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
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.�
The ACLU also obtained two other documents from the Justice
Department�s Office of Legal Counsel revolving around the CIA�s interrogation
A Jan. 28, 2003, memo shows that the OLC gave CIA
interrogators legal cover to use torture practices known as �enhanced
interrogation techniques.� The memo also says that, for each session in which these
techniques were used, the CIA documented, among other things, �the nature and
duration of each such technique employed� and �the identities of those present.�
The undated 2004 memo shows that CIA interrogators were
assured that certain interrogation methods, such as �the waterboard,� did not
constitute torture and could be used during interrogations. The document also
warned, however, that using enhanced interrogation methods could ultimately be
subject to judicial review.
�While the documents released today do provide more
information about the development and implementation of the Bush administration�s
torture policies, even a cursory glance at the documents shows that the
administration continues to use �national security� as a shield to protect government
officials from embarrassment, criticism and possible criminal prosecution,�
said Jameel Jaffer, Director of the ACLU National Security Project. �Far too
much information is still being withheld.�
�These documents supply further evidence, if any were
needed, that the Justice Department authorized the CIA to torture prisoners in
its custody,� Jaffer added. �The Justice Department twisted the law, and in
some cases ignored it altogether, in order to permit interrogators to use
barbaric methods that the U.S. once prosecuted as war crimes.�
In June, House Democrats sent a letter to Attorney General
Michael Mukasey Friday requesting that he appoint a special prosecutor to
investigate whether White House officials, including President Bush, violated
the War Crimes Act for allowing enhanced interrogation techniques to be used
against suspected terrorists.
The letter, signed by 56 Congressional lawmakers, including
House Judiciary Committee Chairman John Conyers, who held a series of hearings
this month revolving around the Bush administration�s interrogation policies
�We believe that these events alone warrant action, but
within the last month additional information has surfaced that suggests the
fact that not only did top administration officials meet in the White House and
approve of the use of enhanced techniques including waterboarding against
detainees, but that President Bush was aware of, and approved of the meetings
taking place,� the letter, dated June 6, says. The Justice Department is
reviewing the letter, a spokesman said.
Leopold is the author of �News Junkie,� a memoir. Visit
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