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Special Reports Last Updated: Jul 31st, 2008 - 00:38:02

Secret �torture memo� gave legal cover to interrogators who acted in �good faith�
By Jason Leopold
Online Journal Contributing Writer

Jul 31, 2008, 00:19

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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 Inquisition.

�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 Both memos were later rescinded.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 torture.

�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, 2003, opinion.

�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 publicly.

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 Abu Zubaydah.

�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, Times article.

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 methods.

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.

Jason Leopold is the author of �News Junkie,� a memoir. Visit for a preview. His new website is The Public Record.

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