Justice assured agency on use of torture

The Justice Department in 2002 told the CIA that its interrogators would be safe from prosecution for violations of torture laws if they believed “in good faith” that harsh techniques used to break prisoners’ will would not cause “prolonged mental harm.”

That heavily censored memo, released Thursday, approved the CIA’s interrogation techniques method by method but warned that if the circumstances changed, interrogators could be running afoul of laws against torture.

The Aug. 1, 2002, legal opinion signed by then-Assistant Attorney General Jay Bybee was issued the same day that 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The Bybee legal opinion defining torture was withdrawn more than two years later.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 Department spokesman Peter Carr said the conclusions of the opinion approving specific interrogation methods are still in force.

Waterboarding is a form of simulated drowning that critics call torture. CIA Director Michael V. 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 harsh interrogation techniques have been made public starting in 2004.

The new Bybee memo was obtained by the American Civil Liberties Union along with two other previously unreleased documents. The memo approved proposed interrogation techniques for al Qaeda suspects who were resistant to traditional methods.

The standards of rough questioning are blacked out. The memo suggests that psychologists should be consulted prior to interrogations to assess the likely mental health effect on the prisoner.

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 J. 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.

Jameel Jaffer, director of the ACLU’s national security project, said the interrogation records, if released, could be used as evidence by defendants in military tribunals at Guantanamo Bay, Cuba, to prove they were tortured or coerced.

A third document released Thursday is undated but likely written in 2004. 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. The memo defends interrogations but warns authorizers to be fully aware of the then-emerging international and U.S. legal debate surrounding the issue.

The undated memo highlights legislation by Sen. Richard J. Durbin, Illinois Democrat, prohibiting cruel, inhuman or degrading treatment of detainees. The amendment became law in October 2004.

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.”

The Bush administration maintains waterboarding was legal when it was used by CIA interrogators in 2002 and 2003 against top al Qaeda detainees Khalid Shaikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri.