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The War Profiteers - War Crimes,
Kidnappings & Torture |
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February 23rd,
2008 - Waterboarding Is Focus of Justice Dept. Inquiry |
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Waterboarding
Is Focus of Justice Dept. Inquiry By Scott Shane New York Times February 23, 2008 Washington - The Justice
Department revealed Friday that its internal ethics office was investigating the
department’s legal approval for waterboarding of Qaeda suspects by the
Central Intelligence Agency and was likely to make public an unclassified
version of its report. The disclosure by H.
Marshall Jarrett, the head of the department’s Office of Professional
Responsibility, was the first official acknowledgment of an internal review
of the legal memorandums the department has issued since 2002 that authorized
waterboarding and other harsh interrogation methods. Mr. Jarrett’s report could
become the first public accounting for legal advice that endorsed methods
widely denounced as torture by human rights groups and legal authorities. His
office can refer matters for criminal prosecution; legal experts said the
most likely outcome was a public critique of the legal opinions on
interrogation, noting that Mr. Jarrett had the power to reprimand or to seek
the disbarment of current or former Justice Department lawyers. The cloak of secrecy that
long concealed the C.I.A.’s secret interrogation program and its legal
underpinnings has gradually broken down. The C.I.A. director, Gen.
Michael V. Hayden, publicly admitted for the first time two weeks ago that
the agency used waterboarding in 2002 and 2003 in the interrogation of three
Qaeda suspects but said that the technique was no longer used, and its
legality under current law is uncertain. The technique, which has been used
since the Spanish Inquisition and has been found illegal in the past by
American courts, involves water poured into the nose and mouth to create a
feeling of drowning. After General Hayden’s
acknowledgment, Attorney General Michael B. Mukasey rebuffed demands for a
criminal investigation of interrogators who used waterboarding or of their
superiors, saying C.I.A. officers could not be prosecuted for actions the
Justice Department had advised them were legal. Mr. Jarrett’s review focuses
on the government lawyers who gave that advice. Mr. Jarrett’s disclosure
came as prosecutors and F.B.I. agents conduct a criminal investigation of the
C.I.A.’s destruction in 2005 of videotapes of harsh interrogations and a week
after Congress passed a ban on coercive interrogations, which President Bush
has said he will veto. Mr. Jarrett did not say when
his investigation might conclude. He did not respond to a request on Friday
for an interview. In a letter to two
Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of
Rhode Island, Mr. Jarrett wrote that the legal advice approving waterboarding
was one subject of an investigation into “the circumstances surrounding the
drafting” of a Justice legal memorandum dated Aug. 1, 2002. The document declared that
interrogation methods were not torture unless they produced pain equivalent
to that produced by organ failure or death. The memorandum, drafted by a
Justice Department lawyer, John Yoo, and signed by Jay S. Bybee, then head of
the department’s Office of Legal Counsel, was withdrawn in 2004. Mr. Jarrett said the investigation
was also covering “related” legal memorandums prepared by the Office of Legal
Counsel since 2002. That suggested the investigation would address
still-secret legal opinions written in 2005 by Steven G. Bradbury, then and
now the acting head of the Office of Legal Counsel, that gave legal approval
for waterboarding and other tough methods, even when used in combination. Mr. Jarrett said his office
was “examining whether the legal advice in these memoranda was consistent
with the professional standards that apply to Department of Justice
attorneys.” “Because of the significant
public interest in this matter, O.P.R. will consider releasing to Congress
and the public a nonclassified summary of our final report,” Mr. Jarrett
wrote, using the initials for the Office of Professional Responsibility. Justice Department officials
said that the O.P.R. inquiry began more than three years ago and noted that
it was mentioned in a Newsweek article in December 2004. It has since been
expanded, the officials said, to cover more recent legal opinions on
interrogation. Mr. Jarrett’s letter, dated
Monday, came in reply to a Feb. 12 letter from Mr. Durbin and Mr. Whitehouse
to him and the Justice Department’s inspector general, Glenn A. Fine, seeking
an investigation into the department’s legal approval of waterboarding. “Despite the virtually
unanimous consensus of legal scholars and the overwhelming weight of legal
precedent that waterboarding is illegal,” the senators wrote, “certain
Justice Department officials, operating behind a veil of secrecy, concluded
that the use of waterboarding is lawful. We believe it is appropriate for you
to investigate the conduct of these Justice Department officials.” Mr. Fine replied in a letter
this week that the law gave Mr. Jarrett’s office responsibility for reviewing
the actions of department lawyers providing legal advice. Mr. Jarrett
confirmed that his office was investigating. Mr. Jarrett reports to the
attorney general and oversees only the professional conduct of Justice
Department attorneys. He does not enjoy the independence or authority of Mr.
Fine, who covers all aspects of Justice operations and also reports to
Congress. In 2006, when Mr. Jarrett
tried to look into the Justice Department’s role in approving the National
Security Agency’s domestic surveillance program, Mr. Bush blocked the
investigation by denying Mr. Jarrett’s investigators the necessary security
clearances. Mr. Fine’s office subsequently obtained the necessary clearances
and began such an investigation. Last November, days after
Mr. Mukasey was confirmed as attorney general, Mr. Bush reversed course and
granted clearances to Mr. Jarrett’s staffers, who began a delayed review of
the legal authorization for the N.S.A. program. Mr. Durbin and Mr. Whitehouse
have been among the most outspoken critics in Congress of harsh interrogation
methods. They have called on Mr. Bush to withdraw the nomination of Mr.
Bradbury, author of the 2005 interrogation memorandums, as chief of the
Office of Legal Counsel; he has filled the job on an acting basis since 2005. In 2004, Mr. Durbin first
proposed a ban on cruel, inhuman and degrading treatment that Congress passed
in 2005, when it was sponsored by Senator John McCain, Republican of Arizona. Mr. Whitehouse, a former
United States attorney, said in an interview that he believed the August 2002
memo on torture, as well as classified opinions he had reviewed, fell far
short of the Justice Department’s standards for scholarship. He said that in
approving waterboarding, the opinions ignored both American military
prosecutors’ cases against Japanese officers for waterboarding American
prisoners during World War II and a federal appeals court’s decision that
upheld the 1983 conviction of a Texas sheriff for using “water torture” on
jail inmates. “I’m very, very pleased that
the Office of Professional Responsibility is looking into this,” Mr.
Whitehouse said. Jose Padilla, the American
sympathizer of Al Qaeda serving a 17-year sentence for conspiring to help violent
Muslim extremists abroad, filed a lawsuit in January against Mr. Yoo, who
left Justice in 2003 to return to his job as a law professor at the
University of California, Berkeley. The lawsuit claims Mr. Yoo’s legal
opinions permitted the designation of Mr. Padilla as an enemy combatant and
his interrogation using methods that amounted to torture. Mr. Yoo, who asserted that a
president during wartime has extraordinarily broad powers, was a highly
influential figure in the Justice Department in the first year after the
Sept. 11, 2001, terrorist attacks. His views found favor with Vice President
Dick Cheney and his legal adviser, David S. Addington, who shared his views
of presidential power. But some of Mr. Yoo’s
opinions, including the August 2002 memo on torture, were withdrawn in 2004
after Jack L. Goldsmith took over as head of the Office of Legal Counsel. Mr.
Yoo could not be reached for comment Friday. External link: http://www.nytimes.com/2008/02/23/washington/23justice.html |