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 prisoners’ will would not cause "prolonged mental harm."
That heavily censored memo, released Thursday, 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, legal opinion 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.
The Bybee legal opinion defining torture was withdrawn more than two years later. Justice spokesman Peter Carr said Thursday the interrogation techniques currently authorized by the Bush administration are legal. It’s unclear, however, which of those outlined in the second memo are still being used. Attorney General Michael Mukasey has refused to address whether waterboarding, for example, is legal since the CIA no longer uses it.
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.
Secret Bush administration memos authorizing harsh interrogation techniques have been made public 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 standards used to judge how physically rough an interrogation could be are blacked out. But interrogations that stress a detainee psychologically or emotionally were not allowed to cause "prolonged mental harm." That was defined as harm lasting months or even years after the interrogation.
The memo suggests psychiatrists or psychologists should be consulted prior to interrogations to assess the likely mental health effect on the prisoner.
"The healthier the individual, the less likely that the use of any one procedure or set of procedures will result in prolonged mental harm," the memo states.
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 techniques that went beyond waterboarding.
He 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.
A third document released 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 approved by the Senate in June 2004 and was part of a 2005 military budget bill that 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, 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.