[News] Secret U.S. Endorsement of Torture
news at freedomarchives.org
Thu Oct 4 11:01:41 EDT 2007
October 4, 2007
Secret U.S. Endorsement of Severe Interrogations
By SCOTT SHANE, DAVID JOHNSTON and JAMES RISEN
This article is by Scott Shane, David Johnston and James Risen.
WASHINGTON, Oct. 3 When the Justice Department
publicly declared torture abhorrent in a legal
opinion in December 2004, the Bush administration
appeared to have abandoned its assertion of
nearly unlimited presidential authority to order brutal interrogations.
But soon after
R. Gonzaless arrival as attorney general in
February 2005, the Justice Department issued
another opinion, this one in secret. It was a
very different document, according to officials
briefed on it, an expansive endorsement of the
harshest interrogation techniques ever used by
The new opinion, the officials said, for the
first time provided explicit authorization to
barrage terror suspects with a combination of
painful physical and psychological tactics,
including head-slapping, simulated drowning and frigid temperatures.
Mr. Gonzales approved the legal memorandum on
combined effects over the objections of
B. Comey, the deputy attorney general, who was
leaving his job after bruising clashes with the
White House. Disagreeing with what he viewed as
the opinions overreaching legal reasoning, Mr.
Comey told colleagues at the department that they
would all be ashamed when the world eventually learned of it.
Later that year, as Congress moved toward
outlawing cruel, inhuman and degrading
treatment, the Justice Department issued another
secret opinion, one most lawmakers did not know
existed, current and former officials said. The
Justice Department document declared that none of
the C.I.A. interrogation methods violated that standard.
The classified opinions, never previously
disclosed, are a hidden legacy of President
Bushs second term and Mr. Gonzaless tenure at
the Justice Department, where he moved quickly to
align it with the White House after a 2004
rebellion by staff lawyers that had thrown
policies on surveillance and detention into turmoil.
Congress and the Supreme Court have intervened
repeatedly in the last two years to impose limits
on interrogations, and the administration has
responded as a policy matter by dropping the most
extreme techniques. But the 2005 Justice
Department opinions remain in effect, and their
legal conclusions have been confirmed by several
more recent memorandums, officials said. They
show how the White House has succeeded in
preserving the broadest possible legal latitude for harsh tactics.
A White House spokesman, Tony Fratto, said
Wednesday that he would not comment on any legal
opinion related to interrogations. Mr. Fratto
added, We have gone to great lengths, including
statutory efforts and the recent executive order,
to make it clear that the intelligence community
and our practices fall within U.S. law and international agreements.
More than two dozen current and former officials
involved in counterterrorism were interviewed
over the past three months about the opinions and
the deliberations on interrogation policy. Most
officials would speak only on the condition of
anonymity because of the secrecy of the documents
and the C.I.A. detention operations they govern.
When he stepped down as attorney general in
September after widespread criticism of the
firing of federal prosecutors and withering
attacks on his credibility, Mr. Gonzales talked
proudly in a farewell speech of how his
department was a place of inspiration that had
balanced the necessary flexibility to conduct the
war on terrorism with the need to uphold the law.
Associates at the Justice Department said Mr.
Gonzales seldom resisted pressure from Vice
Cheney and David S. Addington, Mr. Cheneys
counsel, to endorse policies that they saw as
effective in safeguarding Americans, even though
the practices brought the condemnation of other
governments, human rights groups and Democrats in
Congress. Critics say Mr. Gonzales turned his
agency into an arm of the Bush White House,
undermining the departments independence.
The interrogation opinions were signed by Steven
G. Bradbury, who since 2005 has headed the elite
Office of Legal Counsel at the Justice
Department. He has become a frequent public
defender of the
Security Agencys domestic surveillance program
and detention policies at Congressional hearings
and press briefings, a role that some legal
scholars say is at odds with the offices
tradition of avoiding political advocacy.
Mr. Bradbury defended the work of his office as
the governments most authoritative interpreter
of the law. In my experience, the White House
has not told me how an opinion should come out,
he said in an interview. The White House has
accepted and respected our opinions, even when
they didnt like the advice being given.
The debate over how terrorist suspects should be
held and questioned began shortly after the Sept.
11, 2001, attacks, when the Bush administration
adopted secret detention and coercive
interrogation, both practices the United States
had previously denounced when used by other
countries. It adopted the new measures without
public debate or Congressional vote, choosing to
rely instead on the confidential legal advice of a handful of appointees.
The policies set off bruising internal battles,
pitting administration moderates against
hard-liners, military lawyers against Pentagon
chiefs and, most surprising, a handful of
conservative lawyers at the Justice Department
against the White House in the stunning mutiny of
2004. But under Mr. Gonzales and Mr. Bradbury,
the Justice Department was wrenched back into line with the White House.
After the Supreme Court ruled in 2006 that the
Geneva Conventions applied to prisoners who
Qaeda, President Bush for the first time
acknowledged the C.I.A.s secret jails and
ordered their inmates moved to Guantánamo Bay,
Cuba. The C.I.A. halted its use of waterboarding,
or pouring water over a bound prisoners
cloth-covered face to induce fear of suffocation.
But in July, after a monthlong debate inside the
administration, President Bush signed a new
executive order authorizing the use of what the
administration calls enhanced interrogation
techniques the details remain secret and
officials say the C.I.A. again is holding
prisoners in black sites overseas. The
executive order was reviewed and approved by Mr.
Bradbury and the Office of Legal Counsel.
Douglas W. Kmiec, who headed that office under
Reagan and the first President George Bush and
wrote a book about it, said he believed the
intense pressures of the campaign against
terrorism have warped the offices proper role.
The office was designed to insulate against any
need to be an advocate, said Mr. Kmiec, now a
conservative scholar at
University law school. But at times in recent
years, Mr. Kmiec said, the office, headed by
H. Rehnquist and
Scalia before they served on the Supreme Court, lost its ability to say no.
The approach changed dramatically with opinions
on the war on terror, Mr. Kmiec said. The
office became an advocate for the presidents policies.
From the secret sites in Afghanistan, Thailand
and Eastern Europe where C.I.A. teams held Qaeda
terrorists, questions for the lawyers at C.I.A.
headquarters arrived daily. Nervous interrogators
wanted to know: Are we breaking the laws against torture?
The Bush administration had entered uncharted
legal territory beginning in 2002, holding
prisoners outside the scrutiny of the
International Red Cross and subjecting them to
harrowing pressure tactics. They included slaps
to the head; hours held naked in a frigid cell;
days and nights without sleep while battered by
thundering rock music; long periods manacled in
stress positions; or the ultimate, waterboarding.
Never in history had the United States authorized
such tactics. While President Bush and C.I.A.
officials would later insist that the harsh
measures produced crucial intelligence, many
veteran interrogators, psychologists and other
experts say that less coercive methods are equally or more effective.
With virtually no experience in interrogations,
the C.I.A. had constructed its program in a few
harried months by consulting Egyptian and Saudi
intelligence officials and copying Soviet
interrogation methods long used in training
American servicemen to withstand capture. The
agency officers questioning prisoners constantly
sought advice from lawyers thousands of miles away.
We were getting asked about combinations Can
we do this and this at the same time? recalled
Paul C. Kelbaugh, a veteran intelligence lawyer
who was deputy legal counsel at the C.I.A.s
Counterterrorist Center from 2001 to 2003.
Interrogators were worried that even approved
techniques had such a painful, multiplying effect
when combined that they might cross the legal
line, Mr. Kelbaugh said. He recalled agency
officers asking: These approved techniques, say,
withholding food, and 50-degree temperature can
they be combined? Or Do I have to do the less
extreme before the more extreme?
The questions came more frequently, Mr. Kelbaugh
said, as word spread about a C.I.A. inspector
general inquiry unrelated to the war on
terrorism. Some veteran C.I.A. officers came
under scrutiny because they were advisers to
Peruvian officers who in early 2001 shot down a
missionary flight they had mistaken for a
drug-running aircraft. The Americans were not
charged with crimes, but they endured three years
of investigation, saw their careers derailed and ran up big legal bills.
That experience shook the Qaeda interrogation
team, Mr. Kelbaugh said. You think youre making
a difference and maybe saving 3,000 American
lives from the next attack. And someone tells
you, Well, that guidance was a little vague, and
the inspector general wants to talk to you, he
recalled. We couldnt tell them, Do the best
you can, because the people who did the best
they could in Peru were looking at a grand jury.
Mr. Kelbaugh said the questions were sometimes
close calls that required consultation with the
Justice Department. But in August 2002, the
department provided a sweeping legal
justification for even the harshest tactics.
That opinion, which would become infamous as the
torture memo after it was leaked, was written
largely by John Yoo, a young Berkeley law
professor serving in the Office of Legal Counsel.
His broad views of presidential power were shared
by Mr. Addington, the vice presidents adviser.
Their close alliance provoked
Ashcroft, then the attorney general, to refer
privately to Mr. Yoo as Dr. Yes for his seeming
eagerness to give the White House whatever legal
justifications it desired, a Justice Department official recalled.
Mr. Yoos memorandum said no interrogation
practices were illegal unless they produced pain
equivalent to organ failure or even death. A
second memo produced at the same time spelled out
the approved practices and how often or how long they could be used.
Despite that guidance, in March 2003, when the
Sheikh Mohammed, the chief planner of the Sept.
11 attacks, interrogators were again haunted by
uncertainty. Former intelligence officials, for
the first time, disclosed that a variety of tough
interrogation tactics were used about 100 times
over two weeks on Mr. Mohammed. Agency officials
then ordered a halt, fearing the combined assault
might have amounted to illegal torture. A C.I.A.
spokesman, George Little, declined to discuss the
handling of Mr. Mohammed. Mr. Little said the
program has been conducted lawfully, with great
care and close review and has helped our
country disrupt terrorist plots and save innocent lives.
The agency has always sought a clear legal
framework, conducting the program in strict
accord with U.S. law, and protecting the officers
who go face-to-face with ruthless terrorists, Mr. Little added.
Some intelligence officers say that many of Mr.
Mohammeds statements proved exaggerated or
false. One problem, a former senior agency
official said, was that the C.I.A.s initial
interrogators were not experts on Mr. Mohammeds
background or Al Qaeda, and it took about a month
to get such an expert to the secret prison. The
former official said many C.I.A. professionals
now believe patient, repeated questioning by
well-informed experts is more effective than harsh physical pressure.
Other intelligence officers, including Mr.
Kelbaugh, insist that the harsh treatment
produced invaluable insights into Al Qaedas structure and plans.
We leaned in pretty hard on K.S.M., Mr.
Kelbaugh said, referring to Mr. Mohammed. We
were getting good information, and then they were
told: Slow it down. It may not be correct. Wait
for some legal clarification.
The doubts at the C.I.A. proved prophetic. In
late 2003, after Mr. Yoo left the Justice
Department, the new head of the Office of Legal
Goldsmith, began reviewing his work, which he
found deeply flawed. Mr. Goldsmith infuriated
White House officials, first by rejecting part of
the National Security Agencys surveillance
program, prompting the threat of mass
resignations by top Justice Department officials,
including Mr. Ashcroft and Mr. Comey, and a
showdown at the attorney generals hospital bedside.
Then, in June 2004, Mr. Goldsmith formally
withdrew the August 2002 Yoo memorandum on
interrogation, which he found overreaching and
poorly reasoned. Mr. Goldsmith, who left the
Justice Department soon afterward, first spoke at
length about his dissenting views to The New York
Times last month, testified before the Senate Judiciary Committee on Tuesday.
Six months later, the Justice Department quietly
posted on its Web site a new legal opinion that
appeared to end any flirtation with torture,
starting with its clarionlike opening: Torture
is abhorrent both to American law and values and to international norms.
A single footnote added to reassure the C.I.A.
suggested that the Justice Department was not
declaring the agencys previous actions illegal.
But the opinion was unmistakably a retreat. Some
White House officials had opposed publicizing the
document, but acquiesced to Justice Department
officials who argued that doing so would help
clear the way for Mr. Gonzaless confirmation as attorney general.
If President Bush wanted to make sure the Justice
Department did not rebel again, Mr. Gonzales was
the ideal choice. As White House counsel, he had
been a fierce protector of the presidents
prerogatives. Deeply loyal to Mr. Bush for
championing his career from their days in Texas,
Mr. Gonzales would sometimes tell colleagues that
he had just one regret about becoming attorney
general: He did not see nearly as much of the
president as he had in his previous post.
Among his first tasks at the Justice Department
was to find a trusted chief for the Office of
Legal Counsel. First he informed Daniel Levin,
the acting head who had backed Mr. Goldsmiths
dissents and signed the new opinion renouncing
torture, that he would not get the job. He
encouraged Mr. Levin to take a position at the
Security Council, in effect sidelining him.
Mr. Bradbury soon emerged as the presumed
favorite. But White House officials, still
smarting from Mr. Goldsmiths rebuffs, chose to
delay his nomination.
E. Miers, the new White House counsel, decided
to watch Bradbury for a month or two. He was sort
of on trial, one Justice Department official recalled.
Mr. Bradburys biography had a Horatio Alger
element that appealed to a succession of bosses,
Thomas of the Supreme Court and Mr. Gonzales, the
son of poor immigrants. Mr. Bradburys father had
died when he was an infant, and his mother took
in laundry to support her children. The first in
his family to go to college, he attended Stanford
of Michigan Law School. He joined the law firm of
Kirkland & Ellis, where he came under the
W. Starr, the Whitewater independent prosecutor.
Mr. Bradbury belonged to the same circle as his
predecessors: young, conservative lawyers with
sterling credentials, often with clerkships for
prominent conservative judges and ties to the
Federalist Society, a powerhouse of the legal
right. Mr. Yoo, in fact, had proposed his old
friend Mr. Goldsmith for the Office of Legal
Counsel job; Mr. Goldsmith had hired Mr. Bradbury as his top deputy.
We all grew up together, said Viet D. Dinh, an
assistant attorney general from 2001 to 2003 and
very much a member of the club. You start with a
small universe of Supreme Court clerks, and you narrow it down from there.
But what might have been subtle differences in
quieter times now cleaved them into warring camps.
Justice Department colleagues say Mr. Gonzales
was soon meeting frequently with Mr. Bradbury on
national security issues, a White House priority.
Admirers describe Mr. Bradbury as low-key but
highly skilled, a conciliator who brought from 10
years of corporate practice a more pragmatic
approach to the job than Mr. Yoo and Mr.
Goldsmith, both from the academic world.
As a practicing lawyer, you know how to address
real problems, said Noel J. Francisco, who
worked at the Justice Department from 2003 to
2005. At O.L.C., youre not writing law review
articles and youre not theorizing. Youre giving
a client practical advice on a real problem.
As he had at the White House, Mr. Gonzales
usually said little in meetings with other
officials, often deferring to the hard-driving
Mr. Addington. Mr. Bradbury also often appeared
in accord with the vice presidents lawyer.
Mr. Bradbury appeared to be fundamentally
sympathetic to what the White House and the
C.I.A. wanted to do, recalled Philip Zelikow, a
former top State Department official. At
interagency meetings on detention and
interrogation, Mr. Addington was at times
vituperative, said Mr. Zelikow, but Mr.
Bradbury, while taking similar positions, was professional and collegial.
While waiting to learn whether he would be
nominated to head the Office of Legal Counsel,
Mr. Bradbury was in an awkward position, knowing
that a decision contrary to White House wishes could kill his chances.
Charles J. Cooper, who headed the Office of Legal
Counsel under President Reagan, said he was very
troubled at the notion of a probationary period.
If the purpose of the delay was a tryout, I
think they should have avoided it, Mr. Cooper
said. Youre implying that the acting official
is molding his or her legal analysis to win the job.
Mr. Bradbury said he made no such concessions.
No one ever suggested to me that my nomination
depended on how I ruled on any opinion, he said.
Every opinion Ive signed at the Office of Legal
Counsel represents my best judgment of what the law requires.
Scott Horton, an attorney affiliated with Human
Rights First who has closely followed the
interrogation debate, said any official offering
legal advice on the campaign against terror was on treacherous ground.
For government lawyers, the national security
issues they were deciding were like working with
nuclear waste extremely hazardous to their health, Mr. Horton said.
If you give the administration what it wants,
youll lose credibility in the academic
community, he said. But if you hold back,
youll be vilified by conservatives and the administration.
In any case, the White House grew comfortable
with Mr. Bradburys approach. He helped block the
appointment of a liberal
League law professor to a career post in the
Office of Legal Counsel. And he signed the
opinion approving combined interrogation techniques.
Mr. Comey strongly objected and told associates
that he advised Mr. Gonzales not to endorse the
opinion. But the attorney general made clear that
the White House was adamant about it, and that he would do nothing to resist.
Under Mr. Ashcroft, Mr. Comeys opposition might
have killed the opinion. An imposing former
prosecutor and self-described conservative who
stands 6-foot-8, he was the rare administration
official who was willing to confront Mr.
Addington. At one testy 2004 White House meeting,
when Mr. Comey stated that no lawyer would
endorse Mr. Yoos justification for the N.S.A.
program, Mr. Addington demurred, saying he was a
lawyer and found it convincing. Mr. Comey shot
back: No good lawyer, according to someone present.
But under Mr. Gonzales, and after the departure
of Mr. Goldsmith and other allies, the deputy
attorney general found himself isolated. His
troublemaking on N.S.A. and on interrogation, and
in appointing his friend
J. Fitzgerald as special prosecutor in the C.I.A.
leak case, which would lead to the perjury
Lewis Libby, Mr. Cheneys chief of staff, had
irreparably offended the White House.
On national security matters generally, there
was a sense that Comey was a wimp and that Comey
was disloyal, said one Justice Department
official who heard the White House talk,
expressed with particular force by Mr. Addington.
Mr. Comey provided some hints of his thinking
about interrogation and related issues in a
speech that spring. Speaking at the N.S.A.s Fort
Meade campus on Law Day a noteworthy setting
for the man who had helped lead the dissent a
year earlier that forced some changes in the
N.S.A. program Mr. Comey spoke of the
agonizing collisions of the law and the desire to protect Americans.
We are likely to hear the words: If we dont do
this, people will die, Mr. Comey said. But he
argued that government lawyers must uphold the
principles of their great institutions.
It takes far more than a sharp legal mind to say
no when it matters most, he said. It takes
moral character. It takes an understanding that
in the long run, intelligence under law is the
only sustainable intelligence in this country.
Mr. Gonzaless aides were happy to see Mr. Comey
depart in the summer of 2005. That June,
President Bush nominated Mr. Bradbury to head the
Office of Legal Counsel, which some colleagues
viewed as a sign that he had passed a loyalty test.
Soon Mr. Bradbury applied his practical approach
to a new challenge to the C.I.A.s methods.
The administration had always asserted that the
C.I.A.s pressure tactics did not amount to
torture, which is banned by federal law and
international treaty. But officials had privately
decided the agency did not have to comply with
another provision in the Convention Against
Torture the prohibition on cruel, inhuman, or degrading treatment.
Now that loophole was about to be closed. First
Senator Richard J. Durbin, Democrat of Illinois,
and then Senator
McCain, the Arizona Republican who had been
tortured as a prisoner in North Vietnam, proposed
legislation to ban such treatment.
At the administrations request, Mr. Bradbury
assessed whether the proposed legislation would
outlaw any C.I.A. methods, a legal question that
had never before been answered by the Justice Department.
At least a few administration officials argued
that no reasonable interpretation of cruel,
inhuman or degrading would permit the most
extreme C.I.A. methods, like waterboarding. Mr.
Bradbury was placed in a tough spot, said Mr.
Zelikow, the State Department counselor, who was
working at the time to rein in interrogation policy.
If Justice says some practices are in violation
of the C.I.D. standard, Mr. Zelikow said,
referring to cruel, inhuman or degrading, then
they are now saying that officials broke current law.
In the end, Mr. Bradburys opinion delivered what
the White House wanted: a statement that the
standard imposed by Mr. McCains Detainee
Treatment Act would not force any change in the
C.I.A.s practices, according to officials familiar with the memo.
Relying on a Supreme Court finding that only
conduct that shocks the conscience was
unconstitutional, the opinion found that in some
circumstances not even waterboarding was
necessarily cruel, inhuman or degrading, if, for
example, a suspect was believed to possess
crucial intelligence about a planned terrorist
attack, the officials familiar with the legal finding said.
In a frequent practice, Mr. Bush attached a
statement to the new law when he signed it,
declaring his authority to set aside the
restrictions if they interfered with his
constitutional powers. At the same time, though,
the administration responded to pressure from Mr.
McCain and other lawmakers by reviewing
interrogation policy and giving up several C.I.A. techniques.
Since late 2005, Mr. Bradbury has become a
linchpin of the administrations defense of
counterterrorism programs, helping to negotiate
the Military Commissions Act last year and
frequently testifying about the N.S.A.
surveillance program. Once he answered questions
about administration detention policies for an
Ask the White House feature on a Web site.
Mr. Kmiec, the former Office of Legal Counsel
head now at Pepperdine, called Mr. Bradburys
public activities a departure for an office that
traditionally has shunned any advocacy role.
A senior administration official called Mr.
Bradburys active role in shaping legislation and
speaking to Congress and the press entirely
appropriate and consistent with past practice.
The official, who spoke on the condition of
anonymity, said Mr. Bradbury has played a
critical role in achieving greater transparency
on the legal basis for detention and surveillance programs.
Though President Bush repeatedly nominated Mr.
Bradbury as the Office of Legal Counsels
assistant attorney general, Democratic senators
have blocked the nomination. Senator Durbin said
the Justice Department would not turn over copies
of his opinions or other evidence of Mr.
Bradburys role in interrogation policy.
There are fundamental questions about whether
Mr. Bradbury approved interrogation methods that
are clearly unacceptable, Mr. Durbin said.
John D. Hutson, who served as the Navys top
lawyer from 1997 to 2000, said he believed that
the existence of legal opinions justifying
abusive treatment is pernicious, potentially
blurring the rules for Americans handling prisoners.
I know from the military that if you tell
someone they can do a little of this for the
countrys good, some people will do a lot of it
for the countrys better, Mr. Hutson said. Like
other military lawyers, he also fears that
official American acceptance of such treatment
could endanger Americans in the future.
The problem is, once youve got a legal opinion
that says such a technique is O.K., what happens
when one of our people is captured and they do it
to him? How do we protest then? he asked.
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