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Published on Thursday, July 24, 2008 by Associated Press

Memo: 'Good Faith' Protects Against Torture Charge

by Pamela Hess and Lara Jakes Jordan

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 harsh techniques used to break the will of prisoners, including waterboarding, would not cause "prolonged mental harm."

The newly released but heavily censored memo 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 Gonzales defining torture as only those "extreme acts" that cause pain similar in intensity to that caused by death or organ failure. That memo was later rescinded by the Justice Department.

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.

Bush administration memos authorizing interrogation techniques have been leaked to the press and released under the Freedom of Information Act starting in 2004, when the Abu Ghraib prison abuse scandal revealed detainee mistreatment. Thursday's release adds to the growing record of the still secret program launched after the Sept. 11 terrorist 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-Qaida suspects who were resistant to traditional questioning methods.

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 terror suspect using an "enhanced technique" and ordered a record to be kept of it as the interrogation was happening. It was not clear whether such a record would be taken via notes, videotape or audiotape, but it was to include the "nature and duration of each such technique employed, the identities of those present" and other factors.

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 suggests the CIA at least contemplated "super enhanced" techniques that went beyond waterboarding.

He also 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.

"They will be very interested to know that document identifies techniques, how long they were used and the names of the agents who inflicted the torture," Jaffer said. "It is very important to those tribunals."

A third document released by the ACLU Thursday 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.

That unsigned memo defends interrogations but warns those authorizing them to be fully aware of the then-emerging international and U.S. legal debate surrounding the issue. It appears to serve as groundwork to defend the legality of interrogations - including waterboarding - if necessary.

"Intelligence gained using the interrogation techniques has saved Americans lives and property," the unsigned memo states.

It pointed to the Aug. 2002 Justice Department opinion that concluded "interrogation techniques including the waterboard do not violate the torture statute."

For several years, the Bush administration relied on the findings in that 2002 opinion to maintain its interrogations did not amount to torture - and therefore had not violated any U.S. or international treaties on how detainees are treated.

However, the one-page undated memo highlights legislation by Sen. Dick Durbin, D-Ill., prohibiting cruel, inhuman or degrading treatment of detainees. The amendment was part of a 2005 budget bill authorizing military operations that became law in October 2004.

The memo noted that the Durbin memo was "not, as of now, law." It also notes a 2004 Supreme Court decision - which found that terror suspects held at Guantanamo Bay could challenge their detention in U.S. courts - that "raises possible concerns about judicial review of the program, and these issues."

The Bush administration maintains waterboarding was legal when it was used by CIA interrogators in 2002 and 2003 against top al-Qaida detainees Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri. CIA Director Hayden said waterboarding was used, in part, because of widespread belief among U.S. intelligence officials that more catastrophic attacks were imminent.

© 2008 The Associated Press

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