Torture memo sees 'good faith' defense
In 2002, Justice called interrogators safe if they thought acts would not cause prolonged harm.
WASHINGTON - The Justice Department in 2002 told the CIA that its interrogators would be safe from prosecution for violations of anti-torture laws if they believed "in good faith" that methods used to break prisoners' will would not cause "prolonged mental harm."
That heavily censored memo, released yesterday, approved the CIA's harsh interrogation techniques method by method, but warned that if the circumstances changed, interrogators could be running afoul of anti-torture laws.
The Aug. 1, 2002, memo signed by then-Assistant Attorney General Jay Bybee was issued the same day he wrote a memo for then-White House counsel Alberto R. Gonzales defining torture as only those "extreme acts" that cause pain similar in intensity to that caused by death or organ failure. The Bybee legal opinion defining torture was withdrawn more than two years later. Justice spokesman Peter Carr said the conclusions of the opinion approving specific interrogation methods were still in force.
Waterboarding is a form of simulated drowning that critics call torture. CIA Director Michael Hayden banned waterboarding in 2006, but government officials have said it remains a possibility if approved by the attorney general, the CIA chief and the president.
Secret Bush administration memos authorizing harsh interrogation techniques have been made public starting in 2004, when the Abu Ghraib prison-abuse scandal revealed mistreatment. Yesterday's release adds to the growing record of the still-secret program launched after the 9/11 attacks.
The new Bybee memo was obtained by the American Civil Liberties Union along with two other previously unreleased documents dealing with the CIA's interrogation program. The Bybee memo specifically approved proposed interrogation techniques that were devised for use against al-Qaeda suspects who were resistant to traditional questioning methods.
The standards used to judge how physically rough an interrogation could be are blacked out. But interrogations that stress a detainee psychologically or emotionally were not allowed to cause "prolonged mental harm."
The new documents indicate that senior Bush administration officials were aware of the controversial and potentially problematic use of certain interrogation methods, including waterboarding.
In a second memo, dated Jan. 28, 2003, then-CIA Director George Tenet authorized CIA officers to interrogate a suspect using an "enhanced technique" and ordered a record to be kept of it as the interrogation was happening.
Tenet's memo also authorized the use of both "enhanced techniques" and "standard techniques," and said no other methods could be used "unless otherwise approved by headquarters."
Jameel Jaffer, director of the ACLU's national security project, said the Tenet document suggested the CIA at least contemplated techniques that went beyond waterboarding.
He said the interrogation records, if released, could be used as evidence by defendants in military tribunals at Guantanamo to prove they were tortured or coerced.
A third document released yesterday is undated but likely was written in 2004, well after the last confirmed use of waterboarding against a CIA prisoner. It addresses a planned interrogation, saying that it should go forward only with the clear understanding of all policies pertaining to the treatment of prisoners.