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The War Profiteers - War Crimes,
Kidnappings & Torture |
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October 4th,
2007 - Secret U.S. Endorsement of Severe Interrogations News article by the New York
Times |
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Secret U.S.
Endorsement of Severe Interrogations By Scott Shane, David Johnston & James Risen New York Times October 4, 2007 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 Alberto 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 the Central
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 James 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 President Dick
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 National 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 Al 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 President Ronald 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 Pepperdine University law school. But at times in
recent years, Mr. Kmiec said, the office, headed by William H. Rehnquist and
Antonin 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 John
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 Khalid 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 Counsel, Jack 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
National 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. Harriet 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 Clarence 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 University of Michigan Law
School. He joined the law firm of Kirkland & Ellis, where he came under
the tutelage of Kenneth 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 Ivy 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 Patrick J. Fitzgerald as special
prosecutor in the C.I.A. leak case, which would lead to the perjury conviction
of I. 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 John 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. Copyright 2007 The New York
Times Company External link: http://www.nytimes.com/2007/10/04/washington/04interrogate.html |