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The War Profiteers - War Crimes,
Kidnappings & Torture |
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April 27th,
2008 - Letters Give C.I.A. Tactics a Legal Rationale |
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Letters Give C.I.A.
Tactics a Legal Rationale By Mark Mazzetti New York Times April 27, 2008 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 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
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 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 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 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. Copyright 2008 The New York
Times Company External link: http://www.nytimes.com/2008/04/27/washington/27intel.html |