[Marxism] Bush continues torture policy in secret
lnp3 at panix.com
Thu Oct 4 07:14:55 MDT 2007
NY Times, October 4, 2007
Secret U.S. Endorsement of Severe Interrogations
By SCOTT SHANE, DAVID JOHNSTON and JAMES RISEN
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
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
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 terrorism 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
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
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
“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
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 left the Justice Department soon afterward. He
first spoke at length about his dissenting views to The New York Times
last month, and 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
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
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
“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
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
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
“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.
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