<html>
<body>
<font size=3>April 27, 2008<br>
</font><font size=1>
<a href="http://www.nytimes.com/2008/04/27/washington/27intel.html?_r=1&adxnnl=1&oref=slogin&adxnnlx=1209395374-LPts7dltKNJBOaBNh0m/kA" eudora="autourl">
http://www.nytimes.com/2008/04/27/washington/27intel.html?_r=1&adxnnl=1&oref=slogin&adxnnlx=1209395374-LPts7dltKNJBOaBNh0m/kA<br>
</a></font><h1><b>Letters Give C.I.A. Tactics a Legal Rationale
</b></h1><font size=3>By
<a href="http://topics.nytimes.com/top/reference/timestopics/people/m/mark_mazzetti/index.html?inline=nyt-per">
MARK MAZZETTI</a><br><br>
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. <br><br>
The legal interpretation, outlined in recent letters, sheds new light on
the still-secret rules for interrogations by the
<a href="http://topics.nytimes.com/top/reference/timestopics/organizations/c/central_intelligence_agency/index.html?inline=nyt-org">
Central Intelligence Agency</a>. 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. <br><br>
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.<br><br>
“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.<br><br>
Mr. Bush issued the executive order last summer to comply with
restrictions imposed by the
<a href="http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org">
Supreme Court</a> 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.<br><br>
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. <br><br>
The letters from the Justice Department to Congress were provided by the
staff of Senator
<a href="http://topics.nytimes.com/top/reference/timestopics/people/w/ron_wyden/index.html?inline=nyt-per">
Ron Wyden</a>, an Oregon Democrat who is a member of the Intelligence
Committee and had sought more information from the department.<br><br>
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. <br><br>
“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
<a href="http://topics.nytimes.com/top/reference/timestopics/organizations/d/duke_university/index.html?inline=nyt-org">
Duke University</a>.<br><br>
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. <br><br>
“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. <br><br>
“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. <br><br>
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.”<br><br>
The humiliating and degrading treatment of prisoners is prohibited by
Common Article 3 of the Geneva Conventions. <br><br>
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
<a href="http://topics.nytimes.com/top/reference/timestopics/subjects/t/torture/waterboarding/index.html?inline=nyt-classifier">
waterboarding</a>, which induces a feeling of drowning.<br><br>
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. <br><br>
Mr. Benczkowski’s letters were in response to questions from Mr. Wyden,
whose committee had received classified briefings about the executive
order.<br><br>
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.<br><br>
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. <br><br>
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. <br><br>
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.”
<br><br>
Mr. Wyden said he was concerned that, under the new rules, the Bush
administration had put Geneva Convention restrictions on a “sliding
scale.”<br><br>
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. <br><br>
“The cumulative effect in my interpretation is to put American troops at
risk,” Mr. Wyden said. <br><br>
<br><br>
</font><x-sigsep><p></x-sigsep>
<font size=3 color="#FF0000">Freedom Archives<br>
522 Valencia Street<br>
San Francisco, CA 94110<br><br>
</font><font size=3 color="#008000">415 863-9977<br><br>
</font><font size=3 color="#0000FF">
<a href="http://www.freedomarchives.org/" eudora="autourl">
www.Freedomarchives.org</a></font><font size=3> </font></body>
</html>