Released Memos Could Lead to More Disclosures

Published on
by
The New York Times

Released Memos Could Lead to More Disclosures

by
Mark Mazzetti and Scott Shane

WASHINGTON - Even as President Obama urges the country to turn the page, his decision to reveal exhaustive details about interrogation methods used by the Central Intelligence Agency will likely lead to a flood of new disclosures about secret Bush administration operations against Al Qaeda, according to current and former government officials.

With lawsuits pending in federal courts and lawmakers calling for
extensive inquiries into controversial Bush Administration programs,
Mr. Obama now faces a difficult challenge making good on his promise to
protect intelligence operatives from legal jeopardy.

Some members of Congress and human rights lawyers are likely to
press for new disclosures about the period of several months in 2002
when C.I.A. interrogators began interrogating Abu Zubaydah, a Qaeda operative captured in March of that year.

Rep. John Conyers,
the Michigan Democrat who is chairman of the House Judiciary Committee,
on Friday raised the prospect of prosecutions of senior Bush
Administration officials and Justice Department lawyers who authorized
the harsh interrogations.

"If our leaders are found to have violated the strict laws against
torture, either by ordering these techniques without proper legal
authority or by knowingly crafting legal fictions to justify torture,
they should be criminally prosecuted," he said in a written statement.

The American Civil Liberties Union,
whose lawsuit forced the release of the Justice Department memos
Thursday, plans to press the Justice Department to release other
classified documents from the Bush era, including a 2004 C.I.A.
inspector general's report containing details about the C.I.A. officers
who exceeded Justice Department interrogation guidelines.

"These are the first dominoes," said Jameel Jaffer, an ACLU lawyer.
"It will be difficult for the new administration to now argue that
other documents can be lawfully withheld."

Leon E. Panetta,
the C.I.A. director, raised this very prospect in recent meetings with
White House officials as he pressed his case to withhold sensitive
details from public release of the Justice Department memos.

In a statement to the C.I.A. workforce on Thursday, Mr. Panetta said
the release of the Justice Department memos "is not the end of the road
on these issues."

"More requests will come - from the public, from Congress, and the
Courts - and more information is sure to be released," the statement
said. Agency officials are now worried that the revelations could play
into demands by lawmakers for extensive investigations on Capitol Hill
and elsewhere. C.I.A. officers could even be called to testify in
public about their role in detention and interrogation operations.

"The ones most involved in counterterrorism feel that they have very
exposed flanks in terms of both their personal and professional
futures," said one senior Bush Administration official, speaking on
condition of anonymity.

In the memos, in dozens of pages of dispassionate legal prose, the
methods approved by the Bush administration for extracting information
from senior operatives of Al Qaeda were spelled out in careful detail -
like keeping detainees awake for up to 11 straight days, placing them
in a dark, cramped box or putting insects into the box to exploit their
fears.

The interrogation methods were authorized beginning in 2002, and
some were used as late as 2005 in the C.I.A.'s secret overseas prisons.
The techniques were among the Bush administration's most closely
guarded secrets, and the documents released on Thursday were the most
comprehensive public accounting to date of the program.

Some senior Obama administration officials, including Attorney General Eric H. Holder Jr., have labeled one of the 14 approved techniques, waterboarding,
illegal torture. The United States prosecuted some Japanese
interrogators at war crimes trials after World War II for waterboarding
and other methods detailed in the memos.

The release of the documents came after a bitter debate that divided
the Obama administration, with the C.I.A. opposing the Justice
Department's proposal to air the details of the agency's long-secret
program. Fueling the urgency of the discussion was Thursday's court
deadline in the lawsuit filed by the A.C.L.U.

Together, the four memos give an extraordinarily detailed account of
the C.I.A.'s methods and the Justice Department's long struggle, in the
face of graphic descriptions of brutal tactics, to square them with
international and domestic law. Passages describing forced nudity, the
slamming of detainees into walls, prolonged sleep deprivation and the
dousing of detainees with water as cold as 41 degrees alternate with
elaborate legal arguments concerning the international Convention
Against Torture.

The documents were released with minimal redactions, indicating that
President Obama sided against current and former C.I.A. officials who
for weeks had pressed the White House to withhold details about
specific interrogation techniques. Mr. Panetta, the C.I.A. director,
had argued that revealing such information set a dangerous precedent
for future disclosures of intelligence sources and methods.

Within minutes of the release of the memos, Senator Patrick J. Leahy,
the Vermont Democrat who is chairman of the Senate Judiciary Committee,
said that the memos illustrated the need for his proposed independent
commission of inquiry, which would offer immunity in return for candid
testimony.

Mr. Obama condemned what he called a "dark and painful chapter in
our history" and said that the interrogation techniques would never be
used again. But he also repeated his opposition to a lengthy inquiry
into the program, saying that "nothing will be gained by spending our
time and energy laying blame for the past."

Mr. Obama said that C.I.A. officers who were acting on the Justice
Department's legal advice would not be prosecuted, but he left open the
possibility that anyone who acted without legal authorization could
still face criminal penalties. He did not address whether lawyers who
authorized the use of the interrogation techniques should face some
kind of penalty.

The four legal opinions were written in 2002 and 2005 by the Justice
Department's Office of Legal Counsel, the highest authority in
interpreting the law in the executive branch.

The first of the memos, from August 2002, was signed by Jay S.
Bybee, who oversaw the Office of Legal Counsel, and gave the C.I.A. its
first detailed legal approval for waterboarding and other harsh
treatment. Three others, signed by Steven G. Bradbury, sought to
reassure the agency in May 2005 that its methods were still legal, even
when multiple methods were used in combination, and despite the
prohibition in international law against "cruel, inhuman or degrading"
treatment.

All legal opinions on interrogation were revoked by Mr. Obama on his
second day in office, when he also outlawed harsh interrogations and
ordered the C.I.A.'s secret prisons closed.

In the memos, the Justice Department authors emphasized precautions
the C.I.A. proposed to take, including monitoring by medical personnel,
and the urgency of getting information to stop terrorist attacks. They
recounted the C.I.A.'s assertions of the effectiveness of the
techniques but noted that interrogators could not always tell a
prisoner who was withholding information from one who had no more
information to offer.

The memos include what in effect are lengthy excerpts from the
agency's interrogation manual, laying out with precision how each
method was to be used. Waterboarding,
for example, involved strapping a prisoner to a gurney inclined at an
angle of "10 to 15 degrees" and pouring water over a cloth covering his
nose and mouth "from a height of approximately 6 to 18 inches" for no
more than 40 seconds at a time.

But a footnote to a 2005 memo made it clear that the rules were not
always followed. Waterboarding was used "with far greater frequency
than initially indicated" and with "large volumes of water" rather than
the small quantities in the rules, one memo says, citing a 2004 report
by the C.I.A.'s inspector general.

Most of the methods have been previously described in news accounts
and in a 2006 report of the International Committee of the Red Cross,
which interviewed 14 detainees. But one previously unknown tactic the
C.I.A. proposed - but never used - against Abu Zubaydah, a terrorist
operative, involved exploiting what was thought to be his fear of
insects.

"As we understand it, you plan to inform Zubaydah that you are going
to place a stinging insect into the box, but you will actually place a
harmless insect in the box, such as a caterpillar," one memo says.

Mr. Bybee, Mr. Bradbury and John Yoo,
who was the leading author of the 2002 interrogation memos, are the
subjects of an investigation by the Justice Department's ethics office
about their legal analysis on interrogation. Officials have described
the draft ethics report, by the Office of Professional Responsibility,
as highly critical, but its completion has been delayed to allow the
subjects a chance to respond.

The A.C.L.U. said the memos clearly describe criminal conduct and
underscore the need to appoint a special prosecutor to investigate who
authorized and carried out torture.

But Dennis C. Blair,
the director of national intelligence, cautioned that the memos were
written at a time when C.I.A. officers were frantically working to
prevent a repeat of the Sept. 11, 2001, attacks.

"Those methods, read on a bright, sunny, safe day in April 2009,
appear graphic and disturbing," said Mr. Blair in a written statement.
"But we will absolutely defend those who relied on these memos."

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