[News] Secret U.S. Endorsement of Torture

Anti-Imperialist News news at freedomarchives.org
Thu Oct 4 11:01:41 EDT 2007

October 4, 2007

Secret U.S. Endorsement of Severe Interrogations


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. Gonzales’s 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 
Intelligence Agency.

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 opinion’s 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 
Bush’s second term and Mr. Gonzales’s 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. Cheney’s 
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 department’s 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 Agency’s domestic surveillance program 
and detention policies at Congressional hearings 
and press briefings, a role that some legal 
scholars say is at odds with the office’s 
tradition of avoiding political advocacy.

Mr. Bradbury defended the work of his office as 
the government’s 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 didn’t 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 
belonged to 
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 prisoner’s 
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 office’s 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 president’s 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 you’re 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 couldn’t 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 president’s 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. Yoo’s 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 
C.I.A. caught 
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. 
Mohammed’s 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. Mohammed’s 
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 Qaeda’s 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 Agency’s 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 general’s 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 agency’s 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. Gonzales’s 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 president’s 
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. Goldsmith’s 
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. Goldsmith’s 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. Bradbury’s biography had a Horatio Alger 
element that appealed to a succession of bosses, 
including Justice 
Thomas of the Supreme Court and Mr. Gonzales, the 
son of poor immigrants. Mr. Bradbury’s 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 
and the 
of Michigan Law School. He joined the law firm of 
Kirkland & Ellis, where he came under the 
tutelage of 
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., you’re not writing law review 
articles and you’re not theorizing. You’re 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 president’s 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. “You’re 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 I’ve 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, 
you’ll lose credibility in the academic 
community,” he said. “But if you hold back, 
you’ll be vilified by conservatives and the administration.”

In any case, the White House grew comfortable 
with Mr. Bradbury’s 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. Comey’s 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. Yoo’s 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 
conviction of 
Lewis Libby, Mr. Cheney’s 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 don’t 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. Gonzales’s 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 administration’s 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. Bradbury’s opinion delivered what 
the White House wanted: a statement that the 
standard imposed by Mr. McCain’s 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 administration’s 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. Bradbury’s 
public activities a departure for an office that 
traditionally has shunned any advocacy role.

A senior administration official called Mr. 
Bradbury’s 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 Counsel’s 
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. 
Bradbury’s 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 Navy’s 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 
country’s good, some people will do a lot of it 
for the country’s 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 you’ve 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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