[News] Letters Give CIA Tactics a Legal Rationale

[Anti-Imperialist News]

April 27, 2008
http://www.nytimes.com/2008/04/27/washington/27intel.html?_r=1&adxnnl=1&oref=slogin&adxnnlx=1209395374-LPts7dltKNJBOaBNh0m/kA

Letters Give C.I.A. Tactics a Legal Rationale

By 
<http://topics.nytimes.com/top/reference/timestopics/people/m/mark_mazzetti/index.html?inline=nyt-per>MARK 
MAZZETTI

WASHINGTON ­ The Justice Department has told 
Congress that American intelligence operatives 
attempting to thwart terrorist attacks can 
legally use interrogation methods that might 
otherwise be prohibited under international law.

The legal interpretation, outlined in recent 
letters, sheds new light on the still-secret 
rules for interrogations by the 
<http://topics.nytimes.com/top/reference/timestopics/organizations/c/central_intelligence_agency/index.html?inline=nyt-org>Central 
Intelligence Agency. It shows that the 
administration is arguing that the boundaries for 
interrogations should be subject to some 
latitude, even under an executive order issued 
last summer that President Bush said meant that 
the C.I.A. would comply with international 
strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit “outrages 
upon personal dignity,” a letter sent by the 
Justice Department to Congress on March 5 makes 
clear that the administration has not drawn a 
precise line in deciding which interrogation 
methods would violate that standard, and is 
reserving the right to make case-by-case judgments.

“The fact that an act is undertaken to prevent a 
threatened terrorist attack, rather than for the 
purpose of humiliation or abuse, would be 
relevant to a reasonable observer in measuring 
the outrageousness of the act,” said Brian A. 
Benczkowski, a deputy assistant attorney general, 
in the letter, which had not previously been made public.

Mr. Bush issued the executive order last summer 
to comply with restrictions imposed by the 
<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org>Supreme 
Court and Congress. The order spelled out new 
standards for interrogation techniques, requiring 
that they comply with international standards for 
humane treatment, but it did not identify any approved techniques.

It has been clear that the order preserved at 
least some of the latitude that Mr. Bush has 
permitted the C.I.A. in using harsher 
interrogation techniques than those permitted by 
the military or other agencies. But the new 
documents provide more details about how the 
administration intends to determine whether a 
specific technique would be legal, depending on the circumstances involved.

The letters from the Justice Department to 
Congress were provided by the staff of Senator 
<http://topics.nytimes.com/top/reference/timestopics/people/w/ron_wyden/index.html?inline=nyt-per>Ron 
Wyden, an Oregon Democrat who is a member of the 
Intelligence Committee and had sought more information from the department.

Some legal experts critical of the Justice 
Department interpretation said the department 
seemed to be arguing that the prospect of 
thwarting a terror attack could be used to 
justify interrogation methods that would otherwise be illegal.

“What they are saying is that if my intent is to 
defend the United States rather than to humiliate 
you, than I have not committed an offense,” said 
Scott L. Silliman, who teaches national security 
law at 
<http://topics.nytimes.com/top/reference/timestopics/organizations/d/duke_university/index.html?inline=nyt-org>Duke 
University.

But a senior Justice Department official strongly 
challenged this interpretation on Friday, saying 
that the purpose of the interrogation would be 
just one among many factors weighed in 
determining whether a specific procedure could be used.

“I certainly don’t want to suggest that if 
there’s a good purpose you can head off and 
humiliate and degrade someone,” said the 
official, speaking on the condition of anonymity 
because he was describing some legal judgments that remain classified.

“The fact that you are doing something for a 
legitimate security purpose would be relevant, 
but there are things that a reasonable observer 
would deem to be outrageous,” he said.

At the same time, the official said, “there are 
certainly things that can be insulting that would 
not raise to the level of an outrage on personal dignity.”

The humiliating and degrading treatment of 
prisoners is prohibited by Common Article 3 of the Geneva Conventions.

Determining the legal boundaries for 
interrogating terrorism suspects has been a 
struggle for the Bush administration. Some of 
those captured in the first two years after the 
Sept. 11, 2001, attacks were subjected to 
particularly severe methods, including 
<http://topics.nytimes.com/top/reference/timestopics/subjects/t/torture/waterboarding/index.html?inline=nyt-classifier>waterboarding, 
which induces a feeling of drowning.

But the rules for interrogations became more 
restrictive beginning in 2004, when the Justice 
Department rescinded a number of classified legal 
opinions, including a memorandum written in 
August 2002 that argued that nothing short of the 
pain associated with organ failure constituted 
illegal torture. The executive order that Mr. 
Bush issued in July 2007 was a further 
restriction, in response to a Supreme Court 
ruling in 2006 that holding that all prisoners in 
American captivity must be treated in accordance with Common Article 3.

Mr. Benczkowski’s letters were in response to 
questions from Mr. Wyden, whose committee had 
received classified briefings about the executive order.

That order specifies some conduct that it says 
would be prohibited in any interrogation, 
including forcing an individual to perform sexual 
acts, or threatening an individual with sexual 
mutilation. But it does not say which techniques could still be permitted.

Legislation that was approved this year by the 
House and the Senate would have imposed further 
on C.I.A. interrogations, by requiring that they 
conform to rules spelled out in the Army handbook 
for military interrogations that bans coercive 
procedures. But Mr. Bush vetoed that bill, saying 
that the use of harsh interrogation methods had 
been effective in preventing terrorist attacks.

The legal reasoning included in the latest 
Justice Department letters is less expansive than 
what department lawyers offered as recently as 
2005 in defending the use of aggressive 
techniques. But they show that the Bush 
administration lawyers are citing the sometimes 
vague language of the Geneva Conventions to 
support the idea that interrogators should not be bound by ironclad rules.

In one letter written Sept. 27, 2007, Mr. 
Benczkowski argued that “to rise to the level of 
an outrage” and thus be prohibited under the 
Geneva Conventions, conduct “must be so 
deplorable that the reasonable observer would 
recognize it as something that should be universally condemned.”

Mr. Wyden said he was concerned that, under the 
new rules, the Bush administration had put Geneva 
Convention restrictions on a “sliding scale.”

If the United States used subjective standards in 
applying its interrogation rules, he said, then 
potential enemies might adopt different standards 
of treatment for American detainees based on an 
officer’s rank or other factors.

“The cumulative effect in my interpretation is to 
put American troops at risk,” Mr. Wyden said.




Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

www.Freedomarchives.org  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://freedomarchives.org/pipermail/news_freedomarchives.org/attachments/20080428/3fc7aae3/attachment.htm>