Posted on Thu, Apr. 16, 2009
last updated: May 06, 2009 05:18:54 PM
WASHINGTON — The long-awaited release Thursday of four Bush-era memos lays out in clinical detail many of the controversial interrogation methods secretly authorized by the Bush administration — from waterboarding to trapping prisoners in boxes with insects — while former President George W. Bush was publicly condemning the use of torture.
The memos were made public by the Justice Department with assurances from President Barack Obama that the intelligence officials who followed their guidance won't be prosecuted. However, the president's assurances don't apply to the former administration officials who crafted the legal justification for the interrogation program.
The newly released memos offer the public the most unvarnished and explicit look yet at once-top secret efforts to psychologically break high-level terrorism suspects.
Despite the graphic description of the techniques, the memos at the time concluded that the tactics didn't constitute "cruel, inhuman or degrading treatment," even as Congress was moving to ban such treatment.
The memos reveal that by May 2005 various "enhanced" techniques were used on 28 detainees. Three high-level al Qaida operatives — Khalid Sheik Mohammed, Abu Zubaydah and Abd al Rahim al Nashiri — were subject to waterboarding, a procedure that simulates drowning and is widely regarded as torture.
Obama said Thursday that the U.S. won't prosecute CIA officials who used the techniques and ordered the memos rescinded. The CIA interrogators, some of whom were contractors, weren't identified in the partially censored documents.
"This is a time for reflection, not retribution," Obama said. "In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."
While civil-rights groups applauded Obama for releasing the memos, some expressed frustration with his promises of immunity for those who followed the memos' guidance — and predicted that it would amount to blanket cover for all former Bush administration officials.
Obama's exemption also appears to contradict a prime tenet of the Nuremberg prosecutions of former top Nazis after World War II. The Nuremberg Principle IV says: "The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
For years, the Bush administration had refused to release the memos that provided the legal underpinning for harsh interrogations, eavesdropping without warrants and secret prisons, citing national security, attorney-client privilege and the need to protect the government's deliberative process.
Critics of the Bush administration see the release of the documents as necessary to determine whether former administration officials should be held accountable for legal opinions that justified various measures, including the use of waterboarding.
Human-rights advocates differed Thursday on whether Obama's pledge meant that the architects of the interrogation program were in the clear.
"The Department of Justice appears to be offering a get-out-of-jail-free card to individuals who, by U.S. Attorney General Eric Holder's own estimation, were involved in acts of torture," said Larry Cox, Amnesty International's executive director.
However, Jameel Jaffer, the director of the American Civil Liberties Union's national security project, said he thought the Obama administration left open the possibility of prosecutions.
"There's a remarkable amount of detail in the memos that makes clear that people at the very top of the Bush administration knew exactly what was going on," he said. "President Obama doesn't say anything about the architects of the program. To the extent that it offers anything like immunity, it offers immunity only to CIA interrogators who relied in good faith on legal advice."
CIA Director Leon Panetta told agency employees in a memo Thursday that despite Obama's assurances, "This is not the end of the road on these issues," and agency officials should expect more pressure from the Congress, the public and the courts to release more information.
At the same time, he said, it was important to understand the "context" of the memos, coming soon after the Sept. 11, 2001, attacks. In fact, a newly released Aug. 1, 2002, memo explains the level of concern about another attack, saying that CIA intelligence "indicates that there is a currently a level of 'chatter' equal to that which preceded the September 11 attacks."
Panetta said: "The fact remains that CIA's detention and interrogation effort was authorized and approved by our government. For that reason, as I have continued to make clear, I will strongly oppose any effort to investigate or punish those who followed the guidance of the Department of Justice." Panetta also said the CIA would provide legal representation to any officers investigated for their actions.
The Obama administration was compelled to release the memos, one written in 2002 and three in 2005, to the American Civil Liberties Union under a federal court-imposed deadline in an open-records lawsuit filed by the group.
The Aug. 1, 2002, memo to the CIA's acting general counsel, John Rizzo, signed by Assistant Attorney General Jay S. Bybee, detailed 10 techniques that were approved for use on high-level al Qaida detainee Abu Zubaydah.
The techniques were: waterboarding; placement inside a confinement box with a nonlethal insect; cramped confinement; sleep deprivation; placement in stress positions; "wall standing," in which the detainee's fingertips would have to support his full body weight as he leaned into a wall; facial slapping; facial holds to keep the head immobile; "walling" or pushing his shoulder blades against a wall constructed in a way that makes loud noises; and the "attention grasp," in which an interrogator pulls the detainee toward him.
A newly released May 10, 2005, memo gave the green light for additional methods for other detainees, including substituting normal meals with bland or liquid diets and forcing detainees to stand nude for periods of time.
Another memo on the same day, written by then-OLC head Steven Bradbury, described "prototypical interrogation." These techniques could be authorized for up to a month at a time, during which a detainee is stripped, shackled and hooded with a collar attached to his neck. As soon as the detainee does anything "inconsistent" with the interrogators' instructions, the interrogators use an "insult slap or abdominal slap."
The techniques Bradbury approved included "walling," sleep deprivation, liquid diets and forced nudity except for an adult diaper. If medical personnel approved, repeated sessions could be initiated. Interrogators also were permitted to use a water hose to douse a detainee for several minutes.
In one memo, Bradbury signed off on a long list of limits on interrogation — including setting a maximum of 180 hours for sleep deprivation and allowing for no more than 12 minutes of waterboarding daily. Overall, no detainee could be waterboarded for more than a month.
Bradbury also discussed in detail the legal questions raised by using the various techniques.
"Our conclusion is straightforward with respect to all but two of the techniques . . . " Bradbury wrote, adding that the use of sleep deprivation and waterboarding "involve more substantial questions, with the waterboard presenting the most substantial question."
Bradbury noted that Congress' prohibitions, written to meet U.S. obligations under international law, referred to actions constituting torture must be "specifically intended to inflict severe physical or mental pain or suffering.
His memo went on to say, "drawing distinctions among gradations of pain is obviously not an easy task."
Basing his opinion partly on specialized military training, Bradbury urged "great caution" in the use of waterboarding and sleep deprivation, but concluded the methods as described by the CIA in specific instances didn't constitute torture.
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